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USMC | DRB | 2009_Marine | MD0902464
Original file (MD0902464.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)       20001030 - 20010813     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20010814     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20051202      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 19 D a y ( s )
Education Level:        AFQT: 49
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of TIME LOST : 2 0020521-20020709, 50 days

NJP: None found in record         SCM: None found in record         SPCM: None found in record

Retention Warning Counseling : None found in record

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. Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present, Paragraph 1005, DISCHARGE FOR EXPIRATION OF ENLISTMENT OR FULFILLMENT OF SERVICE OBLIGATION .

B. Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present, Paragraph 1004, CHARACTERIZATION OF SERVICE.

C . 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 .       Decisional issues ( Equity) Applicant contends that his characterization of service was predicated on one singular event in his otherwise honorable service; as such, applicant requests consideration pursuant to equity for upgrade of characterization of his service to Honorable, vice General, Under Honorable Conditions.

Decision

Date: 20 10 0901            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 identified one decisional issue for the Board. The board completed a thorough review of the circumstances that led to his discharge and the discharge process to ensure his discharge me t the pertinent standards of equity and propriety. The Applicant ’ s record of service was marred with one violation of the Uniform Code of Military Justice , specifically, violation of Article 86 ( Unauthorized Absence ) for a period of 50 days ( 20000521-20020709, terminated by surrender to his unit). The Applicant ’ s service record book does not contain records of any administrative o r judicial proceedings resultant from his surrender to military authorities. However, the NDRB presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant . As such, it is presumed that the command took the necessary steps to address the good order and discipline of the unit and the individual, based on the circumstances at the time of the incident. The Applicant does not rebut the period of unauthorized absence, nor the time lost.

: (Decisional) ( ) . The Applicant contends that his characterization of service was predicated on one singular event in his otherwise honorable service; as such, applicant requests consideration pursuant to equity for upgrade of characterization of his service to Honorable, vice General, Under Honorable Conditions. A review of the Applicant ’ s record reveals a period of Unauthorized Absence for 50 days. After 30 days of unauthorized absence, the Applicant was declared a deserter. The Applicant surrendered himself to his unit’s custody. This single transgression occurred during his first year of obligated service. T he Applicant ’ s Proficiency (PRO) and Conduct (CON) marks properly reflect the UA period and the declaration of desertion (3.9/1.9 and 0.0/0.0 respectively).

Per the Marine Corps Separation and Retirement Manual ( MCO P1900.16F ), a Marine may be awarded a General , Under Honorable Conditions discharge if a member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance outweigh positive aspects of the member’s military record. Upon separation, if a member’s average proficiency marks are below 3 .0 and average conduct marks are below 4 .0 , the Marine may be awarded a General , Under Honorable Conditions discharge. The Applicant’s four- year enlistment PRO/CON mark average was 4.0 and 3. 6 , respectively. Based on these marks , and the violation of the UCMJ within his enlistment period, the command had the justification to award the Applicant a General , Under Honorable Conditions discharge. However, the Marine Corps Separation and Retirement Manual provides for a separation authority to determine that a fully honorable characterization of service is warranted if the Marine’s service is otherwise so meritorious that any other characterization would be clearly inappropriate. In the case of the Applicant, this provision was applicable.

 Though the Applicant made a serious breach in expected conduct early in his service, his record after his surrender to his unit is clearly meritorious and warranted an h onorable characterization of service . The Applicant served honorabl y in three unit combat rotations with his Infantry Battalion during Operation IRAQI FREEDOM I, II, and III. Furthermore, his service included voluntarily extend ing his initial enlistment to deploy to combat and complete his third combat rotation with his Battalion .

During the Applicant’s periods of combat operations, the Applicant served as both a fire team leader and squad leader engaged in direct combat. His proficiency and c onduct marks during the period reflect ed excellent service , as follows: 4.5/4.4, 4.5/4.3, 4.7/4.7, 4.7/4.6, and 4.8/4.8. Additionally, the Applicant earned a C ombat A ction R ibbon for direct combat engagements and a Navy and Marine Corps Achievement Medal for sustained superior performance of duties while engaged in actions against the enemy . His services in the attack to Baghdad and follow-on combat deployments to Al-Fallujah and Ar-Ramadi reflected great credit upon himself and the United States Naval Service . As such, b y a unanimous vote of 5-0, the Board determined the characterization of service received upon completion of required active service was inequitable.

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 .



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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