Upgrade.Vet

USMC | DRB | 2009_Marine | MD0901730

Original file (MD0901730.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20090602

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

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

Summary of Service

Prior Service:
Inactive:         NONE              Active:

Period of Service Under Review:
Date of Current Enlistment: 19930122     Age at Enlistment:
Period of E nlistment : Years
Date of Discharge: 19960927      H ighest Rank:
Length of Service:
         Inactive:        Y ea r ( s ) M on th ( s ) 26 D a y ( s )
         Active: Y ea r ( s ) M on th ( s ) 10 D a y ( s )
Education Level:        AFQT: 62
MOS: 7242
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:

SCM:

SPCM:

CC:

Retention Warning Counseling :

Administrative Corrections to the Applicant’s DD 214

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

         Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “ RIFLE SHARPSHOOTER NATIONAL DEFENSE SERVICE MEDAL LETTER OF COMMENDATION ”

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 6213 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 August 1995 until
31 August 2001.

B. Marine Corps Reserve Administrative Management Manual, MCO P1001R.1, Chapter 3, Reserve Participation and Administrative Procedures, paragraph 300.

C. Table 6-1 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 August 1995, Guide for Characterization of Service.

D . 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 Applicant seeks to reenlist into the Armed Forces.
2. The Applicant feels his discharge was due to his immaturity and transportation hardship.
3. The Applicant believes his post-service is worthy of consideration.

Decision

Date: 20 10 032 5 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 did complete a thorough review of the circumstances which led to discharge and the discharge process to ensure discharge met the pertinent sta ndards of equity and propriety. The Applicant’s record of service included numerous missed drills, especially once the unit relocated further away from him. Based on the Applicant’s inability to attend drills , command administratively processed for separation. The command used certified mail to notify the Applicant about his pending involuntary separation. The Applicant failed to acknowledge the commands corres pondence, thus the NDRB presumes by omission, that the he waived his rights to consult with a qualified counsel, submit a written statement, and request an administrative board.

: (Nondecisional) The Applicant seeks to reenlist into the Armed Forces. 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 discharge was due to his immaturity and transportation hardship. The NDRB determined that the Applicant's youth or age was no t a mitigating factor in his misconduct . Additionally, the Applicant felt the distance between his home in Santa Barbara and his drill stations became an obstacle that he could not overcome, especially since he didn’t have his own transportation. The distance between Santa Barbara, California and his initial drill station (MCAS El Toro, California) was 150 miles, which he agreed to. The problem started when his drill unit relocated to MCAS Miramar, California, which was 230 miles away. The additional 80 mile trip, compounded on the fact that the Applicant did not have his own transportation, made it non-cost effective. The Applicant states he was paying more for transportation to get to and from drill, than he was being paid to attend drill. Unfortunately, the NDRB opined that the Applicant took on the responsibility when he first enlisted, even though he did not have reliable transportation at the time and is still accountable for making drills even when his unit relocated. The Applicant provided no documentation that he attempted to relocate to a Marine Reserve unit closer to home. Relief denied.

: (Decisional) ( ) The Applicant contends that his post-service contributions are worthy of consideration. The Applicant provided documentation that he has not been idle since his discharge and has been serving his community faithfully; to include being a teacher assistant at an alternative school for high risk teens. The NDRB opined that the Applicant has taken responsibility for his actions and deemed that his service in the Marine Corps Reserves , which resulted in his discharge, was an aberration of his character. The Board’s vote was 4-1 that the characterization of the discharge should be upgraded to “General (Under Honorable Conditions)”. However, by unanimous vote, the narrative reason for the discharge, “Failure to Participate” shall remain as issued. Relief granted.

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 the discharge was proper and equitable at the time of discharge. How ever, based on the Applicant’s post-service conduct, the NDRB opined that some relief was warranted. 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 Additio nal Reviews , Reenlistment/RE-code 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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USMC | DRB | 2009_Marine | MD0901730

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