ex-, USMC

                  Current Discharge and Applicant’s Request

Application Received:  20090310
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)      20020930 - 20030706   Active:      20030707 –
20061014  HON

Period of Service Under Review:
Date of Current Enlistment:  20061015   Age at Enlistment:
Period of Enlistment:   Years   Months
Date of Discharge:  20080820 Highest Rank:
Length of Service:    Year(s)    Month(s)  05  Day(s)
Education Level:       AFQT:  58
MOS:  0351
Proficiency/Conduct Marks (# of occasions):   () /  ()   Fitness Reports:

Awards and Decorations (per DD 214):    Rifle  Pistol     (2)  (2)    (3)
                          LOA

Lost Time per DD214:  20070720-20080423 (279 DAYS)
                                      20080424-20080427 (4 DAYS)


NJP:

SCM:

SPCM:

    - 20080630:  Article 86 (UA 20070720-20080424 (279 DAYS))
      Sentence:  CONF 5 DAYS, RESTR 56 DAYS, Letter of Reprimand

CC:


Retention Warning Counseling:



                    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 Representation:        From Congress
member:

      Other Documentation:

                          Pertinent Regulation/Law

A.  The Marine Corps Separation and Retirement Manual, (MCO P1900.16F,
effective 1 September 2001 until Present, Paragraph 6210, MISCONDUCT.

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.

C.  The Manual for Courts-Martial authorizes the award of a punitive
discharge if adjudged as part of the sentence upon conviction by a special
or general court-martial for violation of the UCMJ, Article 86.



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

                             Applicant’s Issues

1.    Nondecisional issue:  Applicant wants his RE code upgraded to RE-03
   so he can reenlist in the Marine Corps.
2.    Decisional issue:  Applicant wants his discharge upgraded to
   HONORABLE because his UA was an isolated incident and his post-service
   conduct has been good.

                                  Decision


Date:  20090917              Location: Washington D.C.
Representation: None

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  MISCONDUCT (COMMISSION OF A
SERIOUS OFFENSE).

                                 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 Government
affairs unless there is substantial credible evidence to rebut the
presumption, to include evidence submitted by the Applicant.  The
Applicant’s record of service reflects   for  of the UCMJ: Article 86
(Unauthorized Absence). Despite the excessive length of his UA period (279
days) and the fact he did not voluntarily return to military control (he
was apprehended after his Special Court Martial was completed), his command
offered the Applicant the opportunity to remain on active duty.  The
Applicant declined this offer and asked to be discharged.  His command
administratively processed him for separation.  When processed for
administrative separation, the Applicant consulted with qualified counsel,
but waived  rights to submit a written statement, and did not request an
administrative discharge board.

:  (Nondecisional)  Applicant would like his RE Code upgraded so he can
reenlist in the military, possibly the USMC.   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.

:  (Decisional) ()  .  The Applicant contends his extended period of UA was
a mistake due to being overwhelmed with family problems (baby daughter
spent 5 weeks in the Neonatal Intensive Care Unit (NICU) at Balboa Naval
Hospital and wife suffered from Post-Partum Depression); that his record of
service was exceptional and he has not missed work at his current place of
employment.  He requests these factors be considered.  Although the
Applicant does not state this as a reason for his misconduct, the
Applicant’s medical records show he was treated for PTSD in August 2006 and
attended an in-patient Level III hospitalization for alcohol dependence in
March 2007.  Based on the length of his UA, the Applicant could have
received a Dishonorable Discharge or Bad Conduct Discharge, confinement for
up to 1 ½ years and total forfeitures of all pay and allowances.  Despite
the fact that he did not voluntarily surrender to military control but was
apprehended, the Applicant’s Special Court Martial (SPCM) punishment was
only 5 days confinement, 56 days restriction and a letter of reprimand.

When the Applicant’s wife started having complications in her pregnancy,
despite the Applicant being underway on a ship bound for Iraq, his command
immediately sent him back stateside to be with his wife.  While his newborn
daughter was in the NICU at Balboa Hospital, he was informed he would not
return to Iraq.  The Applicant states he was “overwhelmed trying to be a
good family man and a Marine,” so he went UA.  The Applicant provides no
evidence that he approached his command for assistance when he was
struggling with his family and military obligations.  Based on his
statement, it is clear the Applicant’s unit did all they could to support
him and his family during this challenging time.  The fact he was
apprehended and did not voluntary return to military authorities, and later
refused his command’s invitation to remain on active duty despite his
extended UA period and his SPCM conviction clearly show his lack of
commitment to the Marine Corps.  At the time of his discharge, the
Applicant was a Corporal of Marines with significant combat time and over 5
years of active duty service.  He was a part of the USMC family, fully
versed in the Corp values, yet despite his command’s effort to retain him
in uniform, he made a conscious choice to reject the Corps and return to
his civilian lifestyle.  Aside from his statement he only missed a day of
work in the first month of his current job, he produces no evidence he has
been gainfully deployed during the nine months since his discharge or has
corrected the repeated “mistakes” he made during his UA period.

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, COMMISION OF A
SERIOUS OFFENSE.

The Applicant remains eligible for a personal appearance hearing for a
period of fifteen years from the date of  discharge, August 08, 2008.  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 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