Search Decisions

Decision Text

USMC | DRB | 2009_Marine | MD0901158
Original file (MD0901158.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090330
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)       20050526 - 20050918     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20050919     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20060803      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 29 D a y ( s )
Education Level:        AFQT: 33
MOS: 9900
Proficiency/Conduct M arks (# of occasions): ( ) / 2.0 ( )         Fitness R eports:

Awards and Decorations ( per DD 214):     Rifle NDSM

NJP:
- 20060130 :       Article 91 ( I nsubordinate conduct ), 2 specifications
         Article 92 (Violated liberty policy)
          Awarded : Susp ended:

SCM:

- 2006062 1 :       Art icle 86 (UA) 20060317-20060506 (5 0 days , surrendered )
         Sentence : ( 20060621-20060714 ( 24 days) )

SPCM:

CC:


Retention Warning Counseling :

- 20061030 :       For NJP Article 91 (2 specifications) ( Willfully disobeyed Sergeants )
- Undated :         For medical condition not being a disability (pending surgery).










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. 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.       Applicant seeks VA medical benefits.
2.       Mitigating circumstances. Applicant went UA due to his mother’s illness.

Decision


 Date: 20 0 9 1 112        Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall Misconduct .
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 6105 counseling warnings, for o f the Uniform Code of Mil itary Justice (UCMJ): Article 91 (Insubordinate conduct, 2 specifications), Article 92 (Failure to obey a lawful order or regulation ); and for of the UCMJ: Article 86 (Unauthorized Absence , more than fifty days, surrendered) . Based on the offense(s) committed by the Applicant, command administratively processed for separation . When processed for a dministrative s eparation, the Applicant waived rights to consult with qualified coun sel, submit a written statement and request an a dministrative b oard .

: (Nondecisional) RELIEF NOT WARRANTED. The Applicant states that he seeks VA medical benefits for a knee injury he received during training. The Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is referred to the Addendum, Service Benefits regarding this issue.

: (Decisional) (EQUITY) RELIEF NOT WARRANTED. The Applicant contends that he only went on Unauthorized Absence (UA) due to his mother’s illness. The Applicant submitted a statement from his mother which indicated that she had been ill at the time in question. However, no other documented evidence was provided to substantiate the claim that his mother was seriously ill. He further contends that he received three Red Cross messages in which his mother requested his presence, but was not allowed to go home by his command. The record does not support this contention nor does the Applicant provide any evidence to rebut the assumption of regularity in the conduct of Government affairs – specifically, copies of the Red Cross messages, evidence of leave denial by his command, evidence that he sought assistance from his command or the numerous support organizations available to him for family assistance, medical records for his mother, a doctor’s certification of her illness at the time, etc. The record reflects the Applicant engaged in willful misconduct by going UA for more than thirty days. This is a serious offense which could have resu lted in a punitive discharge in addition to the confinement already served by the Applicant as a result of his s ummary c ourt m artial. The command did not pursue a punitive discharge, but opted instead for the more lenient discharge characterization, Under Other Than Honorable Conditions .

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 until 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 vetera ns 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 d ischarge 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 n aval 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 certificate s (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

Similar Decisions

  • USMC | DRB | 2009_Marine | MD0900213

    Original file (MD0900213.rtf) Auto-classification: Denied

    :() .The Applicant contends he is entitled to a discharge upgrade because he was not properly counseled about the type of discharge he would receive. The NDRB determined the awarded discharge was appropriate andan upgrade would be inappropriate.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 Board found Pertinent Regulation/Law A. ” Additional Reviews : Subsequent to a...

  • NAVY | DRB | 2008_Navy | ND0801433

    Original file (ND0801433.rtf) Auto-classification: Denied

    The Board acknowledges the misconduct of the Applicant and determined the awarded characterization was appropriate; an upgrade would be inappropriate.After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found ” Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received...

  • USMC | DRB | 2009_Marine | MD0901082

    Original file (MD0901082.rtf) Auto-classification: Denied

    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. ” Additional Reviews : After a document review has been conducted, former members are eligible for...

  • NAVY | DRB | 2012_Navy | ND1201031

    Original file (ND1201031.rtf) Auto-classification: Denied

    Relief denied.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 hearing for 15 years from the date of discharge. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal...

  • USMC | DRB | 2008_Marine | MD0801453

    Original file (MD0801453.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated to Military Service: DD 214: Service and/or Medical Record: Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Related to Post-Service Period (cont): 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): - Mother’s Outpatient...

  • USMC | DRB | 2011_Marine | MD1102068

    Original file (MD1102068.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: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD...

  • NAVY | DRB | 2009_Navy | ND0900476

    Original file (ND0900476.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: Substance Abuse: Criminal Records: Family/Personal Status: Community Service: References: Additional Statements: From Applicant: From Representation:From Congress member: Other Documentation: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL...

  • NAVY | DRB | 2009_Navy | ND0902635

    Original file (ND0902635.rtf) Auto-classification: Denied

    Representation: 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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include...

  • NAVY | DRB | 2009_Navy | ND0901447

    Original file (ND0901447.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. Based on a review of the evidence of record, statement of the Applicant, and the length of his UA, the Board determined that an upgrade was not appropriate and the Applicant’s in-service performance was insufficient to mitigate the misconduct.Issue 3: (Decisional) () . ” Additional Reviews : After a document review has been conducted, former members are eligible for a...

  • NAVY | DRB | 2011_Navy | ND1101704

    Original file (ND1101704.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant seeks a change in his RE Code in order to re-enlist in the Armed Forces.2. ” 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. There is no requirement or law that grants...