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USMC | DRB | 2009_Marine | MD0901643
Original file (MD0901643.rtf) Auto-classification: Denied
Name correction under Administrative Corrections to the Applicant’s DD 214

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090526
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)       19920820 - 19930725     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19930726     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19980911      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 16 D a y ( s )   MOS: 3533
Education Level:        AFQT: 71
Proficiency/Conduct M arks (# of occasions): /          Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :     NJP:     SCM:     SPCM:

CC:

- Date illegible :         Offense: F elony conviction , U.S. District Court (South Texas), on four federal charges related to
                  transportation of illegal aliens. Arraignment held on 19971105 ; Court proceeding 19980121;
                  Court Conviction date is illegible on records microfiche .
                  Sentence: 18 months incarceration , plus associated fines and court fees.

Retention Warning Counseling :

- 19980330 :       For civilian court charge on 19980121 for violation of immigration laws in the state of Texas. If on 19980401 I am convicted of this charge, I will be administratively separated from the Marine Corps.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:
         Block 1, Name, should read: “ALMENDAREZNOLASCO, T H OMAS ”
         “ GENERAL (UNDER HONORABLE CONDITIONS ) " ”

         “ MISCONDUCT ”
                 
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:           Rehabilitation/Treatment:                  Criminal Records:       
         Personal Documentation :           Community Service:                References:     
         Department of VA letter:                  Oth er Documentation:    
                  Additional Statements :
         From Applicant:            From /To Representation:            From /To Congress m ember :        

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 .

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 134 .


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

Applicant’s Issues

 1.       Applicant claims his name was incorrectly spelled on his DD-214.
 2.       Applicant contends his DD-214 character of service is incorrect.
3.       Applicant contends his discharge was wrongful.

Decision


 Date: 20 1 1 0 1 20            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. T he Board complete d a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included 6105 counseling retention warning on 19980330 for pending civil charges relating to violation of U.S. immigration laws. The record did not reflect any Uniform Code of Military Justice (UCMJ) Article 15 commanding officer’s nonjudicial punishment or trial s by court-martial . Based on the offense committed by the Applicant , as evidenced by his conviction in U.S. District Court , command administratively processed for separation. When notified of a dministrative separation processing using the procedure, the Applicant exercised his rights to consult with a qualified counsel, obtain copies of all documents, and request an administrative separation board proceeding , but waived his right to submit a written statement .

: ( Nond ecisional) The Applicant claims his name was incorrectly spelled on his DD-214. The Board thoroughly examined the Applicant’s service records and discovered numerous misspelling s of his last name. After referencing the Applicant’s initial enlistment contract and security background check documentation, the Board determined this issue had merit. Therefore, the NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.
: ( Nond ecisional) The Applicant contends his DD-214 character of service is incorrect. The original DD-214 issued to the Applicant o/o 11 Sep 1998 , upon his separation from the Marine Corps , listed “General (Under Other Than Honorable)” in block 24. The correct annotation as recommended by the Administrati ve Separation Board and approved by the Separation Authority (Commanding General, I Marine Expeditionary Force) was General (Under Honorable Conditions). The record reflected that this error was corrected five days after the Applicant’s separation by the issue of a DD-215 which was dated 16 Sep 1998. Accordingly, the Board determined this issue had merit but had been previously corrected. Nevertheless, due to the discovery of additional administrative errors in blocks 1 and 28 of the original DD-214, the NDRB will recommend to the Commandant of the Marine Corps that all errors be corrected collectively and the DD - 214 be reissued as appropriate.
: (Decisional) ( ) . The Applicant contends his discharge was wrongful. The Board conducted an exhaustive review of the Applicant’s service records. Two specific incidents involving the U.S. Border Patrol were annotated therein . The first incident , which occurred in May 1992 , prior to the Applicant’s enlistment, included detainment and questioning by federal officers , but did not result in referral of charges or civil conviction. The sec ond incident occurred on 5 Oct 1997 where the Applicant was apprehended in Texas by U.S. Border Patrol agents for transporting illegal aliens in his personally owned vehicle. The record contained substantial documentation that included statements from four of the officers involved in the apprehension. The statements clearly indicated the Applicant was not only wrongfully involved in illegal activities during this incident, but was likely a participating member of a well-known family (with same last name as Applicant) that was “notorious” in south Texas for human smuggling/trafficking. Due to his felony conviction in U.S. District Court on federal immigration law violations, the Applicant’s command processed him for administrative separation. Due to the Applicant’s outstanding record of service up to this incident, his chain of command was divided on whether to award him a General (Under Honorable Conditions) or an Under Other Than Honorable Conditions discharge. The Administrative Separation Board, by a vote of 3-0, recommended General (Under Honorable Conditions). After considering all the facts and circumstances surrounding this case to include the Applicant’s exemplary service record and character witness statements , the Separation Authority (Commanding General, I Marine Expeditionary Force) directed the Applicant be discharged with a General (Under Honorable Conditions) discharge.

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 evidence submitted by the Applicant. On page 4, Item 8, in the instructions for completion of DD Form 293, the Applicant is notified to submit evidence "which substantiate or relate directly to your issues in Item 6" (Issues: Why an upgrade or change is requested and justification for the request). Additionally, upon receipt of the Applicant's DD Form 293, the NDRB mails an acceptance letter that includes Information Concerning Review Procedures , which discusses the submission of additional documents in paragraph 3, Submission of Evidence , and in the last section on page 4, Information Pertaining to a Review Based Upon Post-Service Conduc t. The Applicant provided no verifiable or substantive evidence to rebut the presumption in this case. Therefore, the Board determined this issue to be without merit and did not provide a basis for which relief could be granted. 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 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 Disable d American 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 their 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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