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USMC | DRB | 2009_Marine | MD0902374
Original file (MD0902374.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090826
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)       19950802 - 19950827     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19950828     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19971021      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 14 D a y ( s )
Education Level:        AFQT: 63
MOS: 3531
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):     

Periods of UA / CONF : 19 days (19 Jul 1997 – 06 Aug 1997)

NJP:

- 19960822 :      Article (Failure to obey a lawful order of Company/Battery Cmdr )
         Awarded: Suspended:

- 19970224 :      Article (Unauthorized absence from appointed place of duty )
         Article (Insubordinate conduct toward s a staff noncommissioned officer)
         Awarded: Suspended:

SCM:

- 19970730 :      Article (Wrongful use of c ontrolled substance, marijuana) ; two specifications:
         S pecification 1 – illegal use of marijuana on or about 11 April 1997
         Specification 2 - illegal use of marijuana on or about 29 May 1997
         Sentence: 19 days

SPCM:   CC:

Retention Warning Counseling :

- 19961029: Counseled this date concerning Spousal Abuse incident dated 960806. Applicant advised that failure to take corrective action may result in administrative separation or limitation on further service.





Administrative Corrections to the Applicant’s DD 214

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

         “ 1995 08 28 ”
         “ 02 01 14 ”      
“MISCONDUCT ”
Block 29, Dates of Time Lost During This Period, should read: “1997 07 19 to 1997 08 06” (Conf: CPEN Brig)

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: NONE     
         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 P1900.16E), 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 .



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

Applicant’s Issues

 1.       Nondecisional issues : Applicant contends that he was advised by a local Veterans Affairs Office that his discharge characterization of service would be automatically upgraded to General ( Under Honorable Conditions ) 6 months after his discharge date . Applicant requests status of th e “automatic” u pgrade.
2.       Decisional issues : (Equity) - Applicant contends that he has been a viable member of his local community for 12 years and warrants consideration for upgrade from Under Other Than Honorable Conditions characterization of service to General ( Under Honorable Conditions ) due to his post - service conduct.

Decision

 Date: 20 10 0827            Location: Washington D.C .         R epresentation : None

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 identif ied one decisional issue to the Board. Additionally, the Board complete d a thorough review of the circumstances that led to the discharge and the discharge process to ensure the Applicant ’ s discharge met the pertinent standards of both equity and propriety. The Applicant’s record of service include s 6105 retention counseling warning and for o f the Uniform Code of Military Justice (UCMJ): A rticle ( Absence Without Leave – Failure to go to Appointed Place of Duty , ) , Article ( Insubordinate Conduct t oward a Warrant Officer, Noncommissioned Officer, or Petty Officer , ) , and Article ( Failure to Obey an Order or Regulation , ) . Additionally, the Applicant received for of the UCMJ: Article ( Wrongful Use, Possession, etc of a Controlled Substance – Marijuana - 2 specifications.)

The Applicant a pre-service moral waiver for minor criminal conduct prior to entering the Marine Corps . Furthermore, the applicant acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 25 July 1995. Based on the Article 112a violation s , processing for administ rative separation was mandatory . The NDRB reviewed the Applicant’s administrative separation package to determine the Applicant ’ s election of rights: W hen notified of a dministrative separation processing using the procedure, the Applicant right to consult with a qualified coun sel, waived his right to an administrative board hearing, did not elect to submit a written statement, and requested leave at home awaiting separation.

: (Nondecisional) The Applicant contends that he was advised by a local Veterans Affairs Office that his discharge characterization of service would be automatically upgraded to General ( Under Honorable Conditions ) 6 months after his discharge date . The Applicant requests a status of his “automatic” u pgrade . ” 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 the N aval S ervice. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge ; as such, the NDRB has no authority to act on this issue .

: (Decisional) ( ) . The Applicant contends that he has been a viable member of his local community for 12 years and warrants consideration for upgrade from an Under Other Than Honorable Conditions characterization of service to a General ( Under Honorable Conditions ) characterization. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question . T he NDRB is authorized to consider post-service factors in the re-characterization of a discharge ; however, there is no law or regulation that provides that an unfavorable discharge be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent that 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. The Applicant provided no documentation of post-service accomplishments other than his statement of being a viable citizen since discharge . The Applicant's efforts need to be more encompassing than t he personal statement he provided to be relevant for consideration by the NDRB . For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, evidence of a drug - free lifestyle, and certification of non-involvement with civil authorities.

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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