Search Decisions

Decision Text

USMC | DRB | 2009_Marine | MD0900994
Original file (MD0900994.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090311
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)       19920122 - 19921021     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19921022     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19970319      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 28 D a y ( s )
Education Level:        AFQT: 42
MOS: 0311/0351
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle W/1 BRONZE STAR UNM LoA

Periods of UA : 19940706- 19940716 ( 10 days); 19960510 - 19970226 ( 292 days)

NJP:
- 19940729 :       Article 86 ( U nauthorized a bsence, reinspection personnel formation)
         Awarded: Suspended: Appealed 19940805. Appeal denied 19940901. Vacate suspension 19941006.

- 19940810 :      Article 86 ( U nauthorized a bsence, appointed place of duty , 940706- 940716 (10 days) )
         Awarded: Suspended:

- 19951204 :      Article 86 ( U nauthorized a bsence , 19951126-19951127 (1 day) )
         A warded : Susp ended:

SCM:

- 19960402 :       Art icle 112a ( Wrongful use of controlled substance, marijuana)
         Sentence : (19960402-19960425 ( 24 days))

SPCM:

CC:

Retention Warning Counseling :

- 19941012 :       For violation of the UCMJ: Art. 86, dtd 940729; Art. 86, dtd 940810.
- 19950410 :       For failure to adhere to the standards of conduct that are in good keeping with good order and discipline.
- 19951215 :       For not being at appointed place of duty on time.

Administrative Corrections to the Applicant’s DD 214

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

          “ MARCORSEPMAN 6419 ”
         “ IN LIEU OF TRIAL BY COURT MARTIAL ”
         “ (1) 19951126; (10) 19940706 - 19940716; (24) 19960402-19960425; (292) 19960510-19970226 ”

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

 A. Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 August 1995 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 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. The main reason for the request to upgrade is to reenlist in the service.
2. That the discharge could be an error for the unauthorized absence , because he submitted a request for early release to attend college and it was approved by his command .

Decision

 Date: 20 0 9 1217            Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall .
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 ; non-judicial punishments ( ) for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Unauthorized a bsence, reinspection personnel formation, appointed place of duty from 940706- 940716 (10 days ) and 19951126-19951127 (1 day)), 3 specifications; and summary court-martial ( ) for of the UCMJ: Article 112a ( Wrongful use of controlled substance, marijuana ) . The Applicant acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 19920114. Based on the SCM received by the Applicant on 19960402, he was being process ed for an administrative separation due to drug use. Prior to being process ed for his separation from the Marine Corps, the Applicant left his command and was in a UA status for 292 days. The Applicant had charges preferred against him for violation of Article 86 ( Unauthorized a bsence, 19960 510 - 19970226 for 292 days ) for which he was apprehended. Violation of Article 86 for more than thirty days is considered a serious offense which could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. However, the Applicant requested and was granted an Under Other Than Honorable Conditions characterization of discharge in lieu of a trial by court-martial for the good of the service. Per Marine Corps regulations, when requesting separation in lieu of trial by court-martial, the service member admits guilt and acknowledges his understanding that if his discharge is u nder o ther t han h onorable c onditions, it may deprive him of virtually all veterans' benefits based upon his current period of active service, and that he may expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered in any branch of the Armed Forces or the character of discharge received there from may have a bearing.

: (Nondecisional) The Applicant’s main reason for the request to upgrade is to reenlist in the service. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, and is not authorized to change a reenlistment code. Refer to the Addendum paragraph, Reenlistment/RE-code , for more information.

: (Decisional) ( ) . The Applicant contends his discharge could be an error for the unauthorized absence, because he claims he submitted a request for an early release to attend college and it had been approved by his command. The record of evidence shows the Applicant signed his notification of separation proceedings for drugs on 19960515 and also s igned his acknowledgment to waive his rights to submit a written statement, request an administrative board, but did request to consult with a qualified counsel. Furthermore, in a statement by the Applicant’s commanding officer “I have personally talked with Mason – and with his parents – on several occasions. I do not think he will ever change his non conformist ways. He is a chronic slacker.” Upon his status of being UA, the C ommand send a letter on 19960606 to the Applicant’s father , informing him of his son ’s UA status, if he remains absent more than 30 days, he will be declared a deserter. Based on the record of evidence, and the long-established Marine Corps policy of awarding “early-outs” for college to meritorious Marines only, the Applicant’s contention is without merit.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .
The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct .



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

Similar Decisions

  • USMC | DRB | 2010_Marine | MD1000733

    Original file (MD1000733.rtf) Auto-classification: Denied

    The NDRB determined that clemency was in order. ” 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. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their opportunities before the NDRB, the Applicant may petition the...

  • USMC | DRB | 2010_Marine | MD1000729

    Original file (MD1000729.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated to Military Service: DD 214: Service/Medical Record: Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Rehabilitation/Treatment: Criminal Records: Personal Documentation: Community Service: References: Department of VA letter: Other Documentation: Additional Statements: From Applicant: From/To Representation: From/To Congress member: Pertinent Regulation/Law A. Paragraph 6210,...

  • NAVY | DRB | 2007_Navy | ND0700228

    Original file (ND0700228.rtf) Auto-classification: Denied

    The summary of service clearly documents the Applicant’stwo NJP’s for violations of UCMJ Articles86 (unauthorized absence), 92 (failure to obey a lawful order), and 128 (assault). For the edification of the Applicant, the NDRB does not have the authority to change a narrative reason for separation to “ Administrative Separation” as requested. 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...

  • NAVY | DRB | 2007_Navy | ND0701214

    Original file (ND0701214.rtf) Auto-classification: Denied

    Types of Documents SubmittedRelated to Military Service: DD 214: Service and/or 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 Representation: From Member of Congress: Other Documentation (Describe) DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW...

  • NAVY | DRB | 2006_Navy | ND0601092

    Original file (ND0601092.rtf) Auto-classification: Denied

    By a vote of the Reason for Discharge shall - PATTERN OF MISCONDUCT.Summary of Service:Prior Service: Inactive:NONEActive: NONE Period of Service Under Review: Date of Enlistment: 19940429Years Contracted:,(36-month active-duty requirement); NO EXTENSION Date of Discharge: 19960425 Length of Service: Active: 01Yrs 07 Mos 06 DaysInactive:00 YRS 04 MOS 20 daysTime Lost During This Period: NONEEducation Level: Age at this Enlistment: AFQT: 35Highest Rate/Rank:FAPerformance Evaluation Averages...

  • USMC | DRB | 2007_Marine | MD0701142

    Original file (MD0701142.rtf) Auto-classification: Denied

    Young and immature DecisionBy a vote of the Characterization shall .By a vote of the Narrative Reason shall MISCONDUCT Date:20080117Location:Washington D.C.Representation: Discussion : 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. Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge 19960510: MARCORSEPMAN 6105 counseling for...

  • USMC | DRB | 2007_Marine | MD0700884

    Original file (MD0700884.rtf) Auto-classification: Denied

    After a thorough review of the Applicant’s record, issues submitted, and post service accomplishments, the Board determined that clemency was not warranted and that the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed.In reviewing discharges, the Board 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. Medical/Service...

  • USMC | DRB | 2012_Marine | MD1201891

    Original file (MD1201891.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated to Military Service: DD 214:Service/Medical Record:Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Rehabilitation/Treatment: Criminal Records: Personal Documentation: Community Service: References: Department of VA letter: Other Documentation: Additional Statements:From Applicant: From/To Representation:From/ToCongress member: Pertinent Regulation/Law A. Relief denied.Summary: After...

  • NAVY | DRB | 2010_Navy | ND1001861

    Original file (ND1001861.rtf) Auto-classification: Denied

    Nondecisional issue - The Applicant seeks clemency in the form of an upgrade in the characterization of his service at discharge from Bad Conduct to General (Under Honorable Conditions) and a change to a better reenlistment code in order to facilitate reenlistment. Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, the verbatim transcript record of trial by Special Court-Martial, and the discharge process, the NDRB...

  • NAVY | DRB | 2010_Navy | ND1002185

    Original file (ND1002185.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated to Military Service: DD 214:Service/Medical Record:Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Rehabilitation/Treatment: Criminal Records: Personal Documentation: Community Service: References: Department of VA letter: Other Documentation: Additional Statements:From Applicant: From/To Representation:From/ToCongress member: Pertinent Regulation/Law A. Representation: none By a...