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USMC | DRB | 2009_Marine | MD0901749
Original file (MD0901749.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090605
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)       NONE      Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20020516     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20051108      H ighest Rank:
Length of Service:
          Inactive:        Year(s) Month(s) 19 D ay(s)
         Active:  Year(s) Month(s) 05 D ay(s)
 Education Level:        AFQT: 69
MOS: 2311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:
Awards and Decorations ( per DD 214):      Rifle (2) MM AFRSM

Periods of UA / CONF :

NJP:

- 20040501 :      Article (Disobeying a lawful order – failure to pay Government Travel Credit Card, GTCC)
          Awarded: Suspended:

- 20040606 :      Article (Disobeying a lawful order – failure to pay GTCC, instructed on 20040111 to pay before June 2004 drill weekend )
         Awarded: NONE Suspended: Vacated: FOP on 20041107

SCM:

SPCM:

CC:

Retention Warning Counseling:

- 20050125 :      For counseling on administrative separation due to 2 NJP’s and 4 page 11 entries for inappropriate use of and/or failure to pay GTCC .

- 20040422 :      For violation of Article 92 (Disobeying a lawful order) failed to pay GTCC.

- 20041107 :       For violation of Article 92 (Disobeying a lawful order) failed to pay GTCC.

- 20041107:      Suspension of FOP awarded on 20040606 at NJP is vacated this date.

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 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present.

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 .


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

Applicant’s Issues

 1. Wants to reenlist.
2. Inequity in the discharge characterization in comparison to other similar situations.
 3. Family issues mitigated his misconduct.
4. Post-service warrants consideration.

Decision

 Date: 20 10 331             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 four 6105 counseling warnings, and two nonjudicial punishments (NJPs) for violations o f the Uniform Code of Mil itary Justice (UCMJ): Article 92 (Disobeying a lawful order, 2 specifications: failure to pay his government travel credit card (GTCC), 2x). Based on the o ffenses committed by the Applicant, his command administratively processed him for separation. When notified of a dministrative separation processing , the Applicant waived his rights to consult with a qualified counsel, submit a written statement, and request an administrative board .
Issue 1 : (Nondecisional) The Applicant wants to reenlist as a co mmissioned flight officer. T he NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, and is not aut horized to change a reentry code.

Issues 2 : (Decisional) ( ) . The Applicant contends his discharge is inequitable in compari son to other similar situations, and he provided a General Accounting Office (GAO) report on travel cards and information on previous NDRB cases. The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service . The Applicant was counseled for the third time regarding his failure to pay his GTCC and this was after his second NJP. Per a character statement from a gunnery sergeant of 8 February 2005, the Applicant sti ll had an outstanding balance of over $4000.00 on his GTCC and showed a lack of concern to resolve his debt. The NDRB found no evidence, nor did the Applicant provide any, that showed he requested financial aid or counseling from any source such as the Navy-Marine Corps Relief Society. Based upon avai lable records, nothing indicated the Applicant’s discharge was in any way inconsistent with the standards of discipline in the U.S. Marine Corps. A preponderance of the evidence revie wed supports the conclusion the Applicant met the requirements for separation by reason of misconduct – pattern of misconduct , separation from the Naval service was approp riate, and an Under Other Than Honorable discharge was warranted.

Issues 3 : (Decisional) ( ) . The Applicant does not deny misusing his GTCC, but stated he had to use his GTCC because his parents were misappropriating his pay, black-mailing his wife, threatening his wife with deportation and not letting her use his vehicle. When he returned from deployment, he had a “broken family,” lost his apartment, one vehicle had missing components, the other vehicle was going to be repossessed because his parents failed to make payments, and was over his head in debt. The NDRB found no evidence, nor did the Applicant provide any, to support his contention. The Applicant’s statements alone, without sufficient documentary evidence, are not enough to form a basis of relief.

Issues 4 : (Decisional) ( ) . The Applicant contends he has been in college since 2007 seeking a Professional Aeronautics Bachelors degree from Emory-Riddle Aeronautical University and provided a reference letter from the associate chair of the aeronautical science department and unofficial transcripts. He has also spent the last four years paying off his debts. The NDRB consider s post-service conduct to determine if the misconduct committed during active duty was indicative of the Applicant's character or an aberration. The NDRB determined the Applicant did not provide sufficient post-service documentary evidence to form a basis of relief. 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 Conduct . The Applicant's efforts need to be more encompassing. The Applicant should provide documentation which could include but not limited to: letters of personal references and verifiable employment record /letter of recommendation from his employers; evidence of a debt free life style; certification of non-involvement with civil authorities , evidence of financial stability (home ownership/home rental history, credit card payments); college transcripts; documentation of community /church service and if married, a marriage certificate. The Applicant should be aware completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post service conduct mitigates the reason for the characterization of discharge.

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 his 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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