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USMC | DRB | 2009_Marine | MD0900768
Original file (MD0900768.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090218
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

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

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       19981024 - 19990726     Active:  

Period of Service Under Review:
Date of Enlistment: 19990727     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20001011      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 18 D a y ( s )
Education Level:        AFQT: 46
MOS: 9900
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:
- 20000201 :       Article 92 ( Violate a lawful order - underage drinking )
         Awarded : Susp ended:

SCM:

- 20000509 :       Article 86 (UA 2000, 20000204 to 1705, 20000303 - 28 DAYS )
         Sentence : RESTR with 45 days Hard Labor

SPCM:             CC:

Retention Warning Counseling :

- 20000131 :       For your illegal consumption of alcohol while under the age 21

- 20000320 :       For UA from 2000, 20000204 to 1705, 20000303

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 :

Administrative Corrections to the Applicant’s DD 214

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

         “ 1999 07 27 ”

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

 A. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 January 1997 until 31 August 2001.

B. 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. Was recommended for discharge by a naval doctor.
2. There were no grounds for an Under Other T han H onorable ( OTH ) discharge due to misconduct .
3. Grandmother’s illness.
4 . His Commanding Officer (CO) did not know about the “uncharacterized separation that was recommended by a professional naval doctor.”
 5 . Post- service conduct.
Decision


 Date: 20 0 9 0514            Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall MISCONDUCT .
Discussion

 : The Applicant contends his characterization of discharge should be changed because he was recommended for discharge by a Navy doctor. either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum , , for additional information regarding .

: ( ) . The Applicant contends his discharge should be changed to U ncharacterized b ecause “there was no grounds for an OTH” due to misconduct. In reviewing discharges, the NDRB presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the characterization of service and/or reason for discharge if such a change is warranted. The Applicant’s record of service was marred by two retention warnings, one NJP for violation of the Uniform Code of Military Justice (UCMJ): Article 92 (Disobey a lawful order – underage drinking ), and one SCM for violation of the UCMJ: Article 86 (UA of 28 days). During this period of enlistment , the Applicant was subjected t o disciplinary proceedings twice as previously disc ussed. This evidenc e of misconduct refutes the Applicant’s contention there were no grounds for discharge based on misconduct . The NDRB determined the Applicant clearly met the requirements for separation due to a pattern of misconduct, and the record of evidence indicates the Applicant waived his rights to an Administrative Discharge Board and submit a statement. The NDRB determined based on the seriousness of the offenses committed and the length of the UA , a change in characterization of service is not warranted .

The Applicant also submitted a personal statement contending the grandmother who raised him was losing her leg to diabetes and he went UA when his request for leave was denied. There is no evidence in the record or presented by the Applicant to support the contention his grandmother was experiencing a life threatening illness and or that he requested leave or assistance from his chain of command and was denied. According ly , the NDRB determined there was insufficient evidence to justify an upgrade. Therefore, relief is denied.

Issue 4: ( ) . The Applicant contends a professional naval doctor recommended an Uncharacterized separation. For the Applicant’s edification, an U ncharacterized discharge shall be used w hen a member is separat ed during an entry level status which is defined as the first 180 days of continuous active duty service unless separation for misconduct, fraudulent enlistment, or homosexual conduct is authorized and when characterization under other than honorable conditions is warranted. Pursuant to the evidence of record the Applicant was notified of administrative separation processing on 19 June 2000 , 297 days after his date of enlistment. Since the Applicant had been enlisted over 180 days at the time of notification of separation he does not qualify for an Uncharacterized discharge.
Issue 5 : ( ) . The Applicant contends he is currently in college, has held all of his jobs with stability and is getting married this year. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation, which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service. 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 rev iew, is considered during NDRB reviews. Docum entation to help support a post- service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificate (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 institutio ns; 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 rev iewed by the NDRB on a case-by- case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.

Besides the Applicant ’s statement on the DD Form 293, he failed to provide any post-service documentation and evidence on his behalf. To warrant an upgrade the Applicant could have produced e vidence a s stated in the above paragraph with the full understanding completion of these items alone does not guarantee an upgrade. The NDRB determined the charact erization of service received, Under Other Than Honorable Conditions, was an appropriate characterization considering the UCMJ violations involved, and lack of post- service documentation.

 After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record, Discharge Process and evidence submitted by the Applicant, the NDRB found

ADDENDUM: Information for the Applicant

 Complaint Procedures : If you believe that 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 : Subsequent to a document review, former members are eligible for a personal appearance hearing, provi ded the application is received at the NDRB within 15 years from the 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. If a former member has been discharged for more than 15 years , has already been grante d 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 Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. 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.
Employmen t / 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 Board for Correction of Naval Records (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 subsequently is processed for an administrative involuntary separation or is referred to a court-martial fo r misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, 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 Board for Correction of Naval Records can grant this type of narrative reason change.
Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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. Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

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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