Upgrade.Vet

USMC | DRB | 2009_Marine | MD0902437

Original file (MD0902437.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20090901

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)       20000609 - 20000917     Active:

Period of Service Under Review:
Date of Current Enlistment: 20000918     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20021029      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 12 D a y ( s )
Education Level:        AFQT: 34
MOS: 0621
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF : UA: 20010627-20011113, 140 days (IHCA); 20011114-20020122, 101 days / CONF:

NJP:     SCM:     SPCM:    CC:

- 20011114 :       Offense: Rape of a child
         Sentence : Jail ed for 93 months and assessed $500.00 in victim fees. During the classification process, it was determined that he was qualified for the Special Offender Program : r eleased from confinement having served over 150 days , must complete 3 years of sex offender treatment and 7 years probation.

Retention Warning Counseling :

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 P1900.16E), 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 .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 86 in excess of 30 days.

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

Applicant’s Issues

1.       Nondecisional issues : Applicant request s an upgrade in characterization of service to Honorable in order to qualify for educational benefits under the Montgomery GI Bill.

2.       Decisional issues : The applicant did not state any decisional issues.

Decision

Date: 20 10 0917          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 did not identify any decisional issues to the Board and did not submit any evidence to rebut the government’s presumption of regularity . However, the Board did complete a thorough review of the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety. The Applicant’s record of service include s one civilian conviction in the Pierce County Superior Court of Washington State for the rape of a child in the first degree.

The Applicant was notified initially that he was being recommended for separation from the service based on the C ommand ’ s belief that he had fraudulently enlisted. Upon review by the Staff Judge Advocate, it was determined that the Applicant was not aware of any criminal proceeding initiated against him at the time of enlistment and that he made no misrepresentation to his recruiter . As such, the separation for fraudulent enlistment was withdrawn. The Applicant was subsequently notified that the C ommand intended to separate him for misconduct – commission of a serious offense - pursuant to paragraph 6210.6 of the Marine Corps Separation and Retirement Manual.

Paragraph 6210.6 specifically states that a M arine may be processed for separation for commission of a serious military or civilian offense under the following circumstances:
(1) The specific circumstances of the offense warrant separation; and
(2) A punitive discharge would be authorized for the same or a closely related offense under the UCMJ ; and
(3) A military or civilian conviction is not required for discharge under this provision.

When notified of a dministrative separation processing using the procedure, the Applicant exercised rights to consult with a qualified counsel and to request an administrative board . An administrative discharge board was held , and , by a vote of 3-0, the administrative discharge board determined that the preponderance of the evidence proved all acts or omissions that were specified in the Applicant ’ s notification of separation. Furthermore, by a vote of 3-0, the administrative discharge board recommended separation from the military service with a characterization of service as Under Other Than Honorable Conditions and that the separation should not be suspended and the Applicant should not be retained in the Individual Ready Reserve.

Upon legal review of the administrative separation package , the General Courts - Martial Convening A uthority properly noted that the Applicant’s conviction in civilian court was for an offense that occurred prior to his enlistment. As such, paragraph 1004.4b of the Marine Corps Separation and Retirement Manual was applicable. Specifically, the Applicant ’ s prior service misconduct could not be used in determin ation of characterization of his service upon separation. Therefore, the discharge authority was bound to characterize the Applicant’s service based solely on the Marine’s overall in-service conduct . The discharge authority therefore directed separation from the service for Misconduct - Commission of a Serious Offense - with a characterization of service of General ( Under Honorable Conditions ) . This characterization was determined by the Applicant ’ s overall in - service conduct as reflected in his total in - service conduct markings average of 2.9.

The Applicant provided post - service documentation, which included a personal statement regarding the completion of his mandated probationary period without incident; a copy of the Veterans Affairs department’s determination of eligibility for educational benefits; and a copy of the Pierce County Superior Court termination of community custody. The Applicant should be aware completion of these items alone does not guarantee an upgrade from an unfavorable discharge . The board reviews post service conduct, on a case-by-case basis , to determine if the misconduct committed during active duty was indicative of the Applicant's character or an aberration .

: (Nondecisional) - 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. 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 re-characterization 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. Additionally, t here 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.

: (Decisional) ( ) . Th e A pplicant did not identify any issues of equity or propriety in his request for a review of discharge from the Armed Forces of the United States (DD Form 293) . However , the board conducted a thorough review of his record and considered the Applicant’s personal statement regarding his civilian conviction. The civilian charges brought against the Applicant warranted separation: the same or similar offense under the U niform Code of Military Justice warrant confinement and a punitive discharge and ultimately, the A pplicant was found guilty by the civilian court.

T he NDRB recognizes that serving in the U.S. Marine Corps is challenging. When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. A G eneral (Under H onorable C onditions) characterization of service is appropriate if the member’s service has been honest and faithful , but significant negative aspects of the member’s conduct or performance outweighs positive aspects of the member’s military record. A review of the Applicant’s Proficiency (PRO) and Conduct (CON) marks show a pattern of inconsistent performance and conduct. Upon separation, if a member’s average proficiency marks are below 3.0 or the average conduct marks are below 4.0, the Marine may be awarded a General (Under Honorable Conditions) discharge. The Applicant’s PRO/CON marks averages, in service, were 4.2 and 2.9, respectively. Based on these marks , the command was justified in awarding the Applicant a General (Under Honorable Conditions) discharge.

Summary : After a thorough review of the available evidence, to include the Applicant’s summary of service, post service documentation, 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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USMC | DRB | 2009_Marine | MD0902437

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