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USMC | DRB | 2009_Marine | MD0902166
Original file (MD0902166.rtf) Auto-classification: Denied

ex-, USMCR
Current Discharge and Applicant’s Request
Application Received: 20090731
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:         NONE              Active:  

Period of Service Under Review:
Date of Current Enlistment: 20010806     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20050112      H ighest Rank:
Length of Service : Inactive: Y ea r ( s ) M on th ( s ) 05 D a y ( s )
                  Active: Y ea r ( s ) M on th ( s ) 05 D a y ( s )

Education Level:        AFQT: 66
MOS: 6153
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 :

- 20030125 :       For failure to attend mandatory drill periods on 20021011; 20021107 through 20021109; 20021213 through 20021215

- 20031019 :       For failure to attend IDT 20031017 to 20031019.

- 20031108 :       For failure to attend IDT 20031107 to 20031108.

- 20031214 :       For failure to attend IDT 20031212 to 20031214.

- 20040222 :       For failure to attend IDT 20040219 to 20040222.

- 20040314 :       For failure to attend IDT 20040312 to 20040314.

- 20040423 :       For failure to attend IDT 20040423 to 20040425.







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
1 September 2001 until Present.

B. Marine Corps Reserve Administrative Management Manual, MCO P1001R.1, Chapter 3, Reserve Participation and Administrative Procedures, paragraph 3300.

C. Table 61 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001, 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 record does not reflect the Applicant was drilling at another location when the underlying assumption of his discharge was that he was not drilling at all.
2. The Applicant had no notice he was being processed for separation with an Under Other Than Honorable Conditions characterization of service.
3. The Applicant made up drills he missed and performed alternate drills while living in          New Jersey.
4. Post-service conduct.

Decision

 Date: 2010 0802            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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service included 6105 counseling warnings and no misconduct resulting in nonjudicial punishment or court martial. The Applicant a pre-service drug waiver for using marijuana prior to entering the Marine Corps acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 24 July 2001 . The Applicant was separated for failure to participate as a Marine Corps reservist and received an Under Other Than Honorable Conditions characterization of service. The NDRB did not have the Applicant’s complete administrative separation package to determine whether or not the Applicant waived rights to consult with a qualified counsel, submit a written statement , and request an administrative board or a General Court-Martial Convening Authority review .

The Applicant provided documentation that i ncluded: and letters from personnel who served with the Applicant during his enlistment and who were present during his discharge process. The Applicant also submitted documentation of completion of E mergency Medical Technician (E MT ) training and community service as a volunteer EMT with a local rescue unit.

: (Decisional) ( ) . The Applicant contends he was drilling at another location and was discharged in error. The Applicant further contends the underlying assumption of his discharge was that he was not drilling at all and that he had no notice he was being processed for separation with an Under Other Than Honorable Conditions characterization of service. The NDRB did not have access to the Applicant’s complete discharge package. It was noted that all of the Applicant’s 6105 warnings regarding missed drills at the unit in Nevada were entered in the absence of the Applicant and never signed by him. Testimony revealed the Applicant had moved several times during the period in question and finally received notification of separation while attending drill at NAS Willow Grove , PA . The NDRB found the Applicant should have been more vigilant in maintaining contact with his parent unit in Nevada to ensure coordination of his drills. However, it is evident the Applicant did not receive timely notification of separation. The NDRB also found the Applicant had a responsibility to ensure administrative matters were properly handled but was not fully supported by his parent unit or the command he was drilling with. The Applicant’s discharge was proper but was not timely due to failure of the Applicant to take initiative through his chain of command to resolve the problem. The NDRB recognizes the commands involved shared some responsibility to take care of their Marine but concluded the Applicant shared in this responsibility . Due to the circumstances and limited documentation to verify the Applicant’s contention, only p artial relief is warranted in this case .

: (Decisional) ( ) . The Applicant contends he made up drills he missed and performed a lternate drills while living in New Jersey. The Applicant submitted statements from a Sergeant Major and a Gunnery Sergeant who had knowledge of the Applicant’s situation during the time in question. The evidence indicated the Applicant did make up drills he missed due to weather while in Nevada and began drilling at NAS Willow Grove due to moving to New Jersey. The evidence was incomplete and did not fully explain the Applicant’s situation to the NDRB’s satisfaction. However, there was sufficient doubt regarding the administration of the Applicant’s drill record to warrant some relief in this case .

: (Decisional) ( ) . The Applicant requested that the NDRB consider post-service conduct as a basis for a more thorough understanding of his performance and conduct during the period of service under review. The NDRB considers post-service conduct in order to determine if the misconduct committed during active duty was indicative of the Applicant's character or an aberration. The Applicant submitted documentation of completion of EMT training as well as evidence he volunteers with a local rescue squad. The Applicant also submitted several certificates of commendation rel ating to his service as an EMT. While the NDRB applauds the Applicant’s success, t o wa rrant an upgrade post - service effor ts need to be more encompassing. The Applicant could have produced additional evidence as stated in the addendum below , P os t-S ervice C onduct , with the full understanding that completion of these items alone does not guarantee an upgrade. The NDRB determined the limited post-service documentation was insufficient to warrant relief.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, discharge process , post-service conduct, and personal testimony, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .


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 Disabled 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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