Upgrade.Vet

USMC | DRB | 2009_Marine | MD0900337

Original file (MD0900337.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20081021

Characterization of Service Received:

Narrative Reason for Discharge: CONDUCT TRIABLE BY COURT-MARTIAL

Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to:

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       19860222 - 19861207     Active: 19861208 - 19921224 HON

Period of Service Under Review:
Date of Current Enlistment: 19921225     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19931124      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 00 D a y ( s )
Education Level:        AFQT: 81
MOS: 6336
Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle MM LOA COC (2)

Periods of UA / CONF :

NJP:

SCM:

SPCM:

CC:

Retention Warning Counseling:

- 19930707:      For making and uttering a check without sufficient funds to Winn Dixie in Havelock NC in the sum of $13.00 on 19930516.
- 19930 414 :       For writing worthless checks and having insufficient funds to cover those checks written.
- 19920406: For diagnosis of Personality Disorder, not otherwise specified with Passive Aggressive and Immature features. Technically fit for duty and responsible for own behavior.
- 19900419: For diagnosis of Personality Disorder, not otherwise specified with Passive Aggressive and Immature features. Technically fit for duty and responsible for own behavior.
- 19870924: For failure to complete assigned homework, UA from place of duty at time prescribed, disrespect toward class leader, sleeping in class.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 861208 UNTIL 921224”

The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.

Types of Documents Submitted/reviewed

Related to Military Service:
                  DD 214:          Service / Medical Record:          Other Records:

Related to Post-Service Period:
         Employment:               Finances:                 Education /Training :
         Health/Medical Records:          Substance Abuse:                  Criminal Records:
         Family/Personal Status:                   Community Service:                References:
         Additional Statements :
                  From Applicant:          From Representat ion :               From Congress member :

         Other Documentation :

Pertinent Regulation/Law
Pending result of hearing

A. Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 June 1989 until 17 August 1995.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications .

C . Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs , Part V, Para 502, Propriety and Para 503, Equity .

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1.       Applicant claims she was inappropriately discharged in lieu of court - martial for financial problems that were the result of administrative errors made by USMC finance personnel.
2. Applicant seeks post-service conduct consideration.

Decision

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall CONDUCT TRIABLE BY COURT - MARTIAL .

Date: 20 0 9 1109          Location: Washington D.C .         R epresentation :

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of g overnment al a ffairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service included 6105 counseling warnings .
T he Ap plicant was discharged after her reques t for separation in lieu of a trial by court-martial ( for allegedly defrauding the government) was accepted by the separation authority. D espite not having access to the Applicant’s separation agreement, the NDRB noted that standard administrative procedures when requesting separation in lieu of trial by court-m artial require the member to admit guilt and acknowledge their understanding that if their discharge is characterized as Under Other Than Honorabl e Conditions, it may deprive them of virtually all veterans benefits based upon their current perio d of active service and they may expect to encounter substantial prejudice in civilian life. The NDRB presumed regularity in the Applicant’s separation.

: (Decisional) ( ) . The Applicant contends that she was inappropriately discharged in lieu of court - martial for financial problems (indebtedness, bounced checks) that were the result of administrative errors made by Marine Corps finance personnel in managing her pay . The record clearly reflects that the Applicant did suffer considerable problems with her pay and allowances from July of 1992 until discharged in November of 1993 —primarily while serving in Okinawa . The record also clearly shows that the Applicant had written sixteen worthless checks from November and December of 1992. A s pecial c ourt - m artial was convened in February 1993 for the worthless checks , but did not proceed for reasons that are not found in the record or provided by the Applicant . Further, it is unclear what actions were taken by the command on behalf of the Applicant to assist her with her numerous pay problems or against the A pplicant resulting in her discharge in lieu of trail by court martial. Finally, the specific s on which the Applicant accepted separation in lieu of court-martial were also unclear (no record) as the Applicant claimed she desired only to quickly le ave the service at that point, and was unsure as to the details of her agreement some 16 years later .

Despite the lack of official documentation on alleged misconduct of the Applicant, t he NDRB did take into account that in September of 1993, the Board for Correction of Naval Records (BCNR) found error and injustice in the Applicant’s record regarding her considerable pay problems while in Okinawa. Also within the Applicant’s record was a waiver of indebtedness to the government , granted by the Defense Finance and Accounting Service (DFAS) on 30 November 1993, six days after the Applicant’s discharge.

The NDRB reviewed a l l available evidence, including document ation provided by the Applicant. T he NDRB found that the discharge was proper at the time of issue due to the Applicant’s voluntary acceptance of a separation in lieu of trial , but board members had substantial doubt regarding the equity of the discharge considering the lack of specifics on the allegation s against the Applicant in her record, the substantiated pay problems of the Applicant at the hands of the government and the BCNR and DFAS finding s in her favor. Therefore, the NDRB found partial relief to be warranted.

: (Decisional) ( ) . The Applicant requested that the NDRB consider her performance and conduct during the period of service under review , and her post - service accomplishments . The Applicant provided documentation that she had completed a Bachelor’ s degree and achieved numerous academic honors. Additionally, s he provided proof of steady employment , including operating her own business , as well as her certificate of marriage. The NDRB found the Applicant’s post - service conduct to be commendable and app reciated the Applicant’s drive and commitment to excellence in pursuit of her achievements. The Board noted that the Applicant had no other incidents of misconduct in her record prior to the indebtedness issues .

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, discharge process and post service conduct, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain CONDUCT TRIABLE BY COURT-MARTIAL .

ADDENDUM: Information for the Applicant

Complaint Procedures : If you believe the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC 20301-4000. You should read Enclosure (5) of the Instruction before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Instruction 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil . ”

Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s date of discharge. The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge. Representation at a personal appearance hearing is recommended but not required. There are veterans organizations such as the American Legion and the Association of Service Disable Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits: The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

Employment/Educational Opportunities : The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. Only the BCNR can make changes to reenlistment codes. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, the medical board report is filed in the member’s terminated health record. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons. Only the BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered during Board reviews. Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle. The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate in-service misconduct was an aberration and not indicative of the member’s overall character.

Issues Concerning Bad-Conduct Discharges (BCD ): Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a special court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership: The names and votes of the members of the NDRB Board are recorded on the original of this document and may be obtained from the service records by writing to:

Secretary of the Navy Council of Review Boards
Attn: Naval Discharge Review Board
720 Kennon Street SE Rm 309
Washington Navy Yard DC 20374-5023

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USMC | DRB | 2009_Marine | MD0900337

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