Upgrade.Vet

USMC | DRB | 2009_Marine | MD0902128

Original file (MD0902128.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20090728

Characterization of Service Received:

Narrative Reason for Discharge: UNACCEPTABLE CONDUCT

Authority for Discharge: MARCORSEPMAN 4102

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

Summary of Service

Prior Service:
Inactive: US MC ( PLC )     19 9 80 429 - 19 981211      Active: USMCR 19950622-19950724
                                                                        US AR 19950725-19980511
                           USMCR 19980512-19981211
Period of Service Under Review:
Date of Appointment : 199 81212     Age: 25
Years Contracted : Indefinite
Date of Discharge: 200 61130       Highest Rank : CAPT
Length of Service: 7 Years 11 Months 19 D ay s
Education Level:         AFQT: NFIR
Officer’s Fitness reports: Available

Awards and Decorations ( per DD 214):      Rifle (4 ^th awd) P istol (4 ^th awd) (w/ combat V) CoA (2d awd)

Charge s Preferred: Board of Inquiry
Charges and Specifications:
         Article 121 (Larceny, stole one set of desert utilities from another officer)
         Article 133 (Conduct unbecoming an officer, encouraged another officer to lie regarding the missing utilities)

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. Secretary of the Navy Instruction 1920.6C (ADMINISTRATIVE SEPARATION OF OFFICERS ), effective 15 December 2005 until present establishes policies, standards and procedures for the administrative separation of Navy and Marine Corps officers from the naval service in accordance with Title 10, United States Code and DoD Directive 1332.30 of 14 March 1997.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV , Para 403m(7)(a), Presumption Concerning Court-Martial Specifications .

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

Applicant’s Issues

1. The Applicant contends his discha rge is inequitable and improper based on the circumstances.

Decision

Date: 2010 0917 Location: Washington D.C. R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall SECRETARIAL AUTHORITY .

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 evidence submitted by the Applicant. The Board did complete 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 a Board of Inquiry (BOI ) for o f the Uniform Code of Military Justice (UCMJ): Article 121 (Larceny, stole one set of desert utilities from another officer) and Article 133 (Conduct unbecoming an officer by encouraging another officer to lie regarding the missing utilities) . Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant exercised rights to consult with a qualified counsel, to submit a written statement for consideration by the separating authority, and to present his case at a BOI . The Applicant appeared before a Board of Inquiry , who recommended, by a 3-0 vote, that the Applicant be with characterization of service as Under Other Than Honorable Conditions. On 23 October 2006, the Deputy Commandant for Manpower and Reserve Affairs recommended to the Assistant Secretary of the Navy (Manpower and Reserve Affairs) that the Applicant be separated with characterization of service as Under Other Than Honorable Conditions. On 27 October 2006, the Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved the Applicant’s discharge by reason of Unacceptable Conduct , with characterization of service as Under Other Than Honorable Conditions. The Applicant was discharged from the Marine Corps on 30 November 2006.

: (Decisional) ( ) . The Applicant contends his discharge is inequitable and improper based on the circumstances. The Board reviews the propriety and equity of an Applicant’s discharge to determine if 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. In the course of reviewing the Applicant’s service record, decision of the BOI, the Applicant’s testimony, and the subsequent statements from military individuals in the Applicant’s chain of command, t he Naval Discharge Review Board sided with the I MEF Commander’s opinion , who strongly felt that the judicial process failed to comport with established Marine Corps orders and the fundamental principle of fairness. The Applicant’s case took over 28 months to process , which included charges being preferred to a General Court-Martial twice, only to be dismissed both times. Finally, the command conducted a BOI, which found him guilty and recommended separation. At this point, the Applicant was 22 months past his end of active service . The NDRB determined that the Applicant did not receive due process of the law that is required in any administrative process, especially when it carried a significant punitive element. The Board’s vote was 4-1 that the character of the discharge shall change to Honorable and by a unanimous vote, the narrative reason for discharge shall change to Secretarial Authority . 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 Therefore, the awarded characterization of service shall and the narrative reason for separation shall change to .

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

Similar Decisions

USMC | DRB | 2013_Marine | MD1301696

Original file (MD1301696.rtf) Auto-classification: Denied

The NDRB is charged with reviewing the propriety and equity of an Applicant’s discharge and is authorized to change the characterization of service and the reason for discharge if such change is warranted. ” 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. Additionally, the NDRB has no authority to upgrade a...
USMC | DRB | 2009_Marine | MD0901206

Original file (MD0901206.rtf) Auto-classification: Denied

On 10 February 2006, the day following the BOI hearing, Maj S_, the counsel for the Applicant, received the BOI record of proceedings for his initial review. The Applicant failed to show how his case was materially impacted or prejudiced by not receiving the requested additional time for a rebuttal to the BOI findings.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,...
USMC | DRB | 2006_Marine | MD0600757

Original file (MD0600757.rtf) Auto-classification: Denied

The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and the Narrative Reason for Separation be changed to “ Secretarial Authority. Equity – Quality of service: The Applicant contends that his characterization of discharge was unduly harsh, considering his more than 11 years of devoted service to the Marine Corps and that his “adulterous conduct was not service discrediting nor did it prejudice good order and discipline.”...
USMC | DRB | 2013_Marine | MD1301515

Original file (MD1301515.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/To Congress member: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD...
USMC | DRB | 2007_Marine | MD0700189

Original file (MD0700189.rtf) Auto-classification: Denied

Record of service. There is credible evidence in the record that the Applicant violated the UCMJ. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that the command unfairly singled him out for discipline.
USMC | DRB | 2015_Marine | MD1400687

Original file (MD1400687.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/To Congress member: Pertinent Regulation/Law A. Secretary of the Navy...
USMC | DRB | 2011_Marine | MD1100287

Original file (MD1100287.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...
USMC | DRB | 2005_Marine | MD0500419

Original file (MD0500419.rtf) Auto-classification: Denied

By unanimous vote, the BOI recommended that that Applicant be separated from the naval service for the reasons listed above and the service be characterized as other than honorable.020211: Applicant’s request denied. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).The Applicant contends that his discharge was improper because the Board of Inquiry (BOI), which...
USMC | DRB | 2009_Marine | MD0900005

Original file (MD0900005.rtf) Auto-classification: Denied

Applicant’s Request: Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive: USMCR (DEP) 19841026 - 19850826 Active: 19850827 - 1988121219881213 - 1992110619960112 - 19970130 Period of Service Under Review: Date of Commission: 19970131Age at Commission: Period of Commission: Indefinite Date of Discharge: 20050731 Highest Grade: CHIEF WARRANT OFFICER (W3) Length of Service: Years Months01 Days Education Level: AFQT: 43 MOS: 2100 Fitness Reports:...
USMC | DRB | 2012_Marine | MD1201872

Original file (MD1201872.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. ” 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. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.

Search Decisions

Decision Text

USMC | DRB | 2009_Marine | MD0902128

Similar Decisions