Upgrade.Vet

USMC | DRB | 2009_Marine | MD0902480

Original file (MD0902480.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20090909

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)       20070414 - 2007062 4     Active:

Period of Service Under Review:
Date of Current Enlistment: 2007062 5     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080630      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 23 D a y ( s )
Education Level:        AFQT: 68
MOS: 9971
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:
Awards and Decorations ( per DD 214):      Rifle
Periods of UA : 20080103-20080122 (20); 20080124-20080203 (11); 20080308-20080418 (42)

NJP:
- 20080305        Article 86 (UA), 3 specifications
         Specification 1: 20080103-20080123, 20 days       Specification 2 : 20080124-2008 0204, 11 days
         Awarded : Susp ended:

- 20080508 :       Article 86 (UA 20080308-20080419, 42 days)
         Awarded : Susp ended:

SCM:     SPCM:    CC:

Retention Warning Counseling :
- 20080508 :       For violation of article 86 , u nauthorized absence from 20080103-20080123, 20 days; 20080124-20080204, 11 days and from 20080308-20080419, 42 days terminated by apprehension.

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. The Marine Corps Separation and Retirement Manual, (MCO P1900.16F, effective 1 September 2001 until Present, Paragraph 6210, MISCONDUCT.

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.       Non - decisional issue : Applicant seeks upgrade in discharge characterization of service in order to enlist in the Tennessee National Guard and seek employment with state and local law enforcement.

2.       Decisional issue: (Equity) Applicant contends that his misconduct, which resulted in an Under Other Than Honorable Conditions characterization of service, was the result of h is youth , his immaturity , and personal family stress issues during his enlistment period, which were mitigati ng factors in determination of his overall service characterization .

Decision

Date: 20 10 0909          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 eviden ce submitted by the Applicant. The Applicant identified one decisional issue for the Board’s consideration. The NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge and the discharge process to ensure that the discharge met the pertinent standards of equity and propriety.

The Applicant ’ s record of service included one 6105 retention-warning counseling and two non-judicial p unishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ) : Article 86 (Absence without Leave - 2 specifications of absence from unit less than 30 days and 1 specification of absence greater than 30 days, terminated by apprehension). Based on the offenses committed by the Applicant, his command administratively processed him for separation. When notified of a dministrative separation processing using the board notification procedure, the Applicant waived his right to consult with a qualified counsel, submit ted a written statement, and waived his right to request an administrative board . The NDRB had the Applicant’s administrative separation package to determine the Applicant ’s election of his rights.

: (Nondecisional) Applicant seeks an upgrade in discharge characterization of service in order to enlist in the Tennessee National Guard and seek employment with state and local law enforcement. These are issues the Board cannot form the basis of relief for, or are issues in which the Board does not have the authority to grant the relief the Applicant is petitioning. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other branch of the Armed Forces and is not authorized to change a reenlistment code. Only the Board for Correction of Naval Records 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 may be submitted through a recruiter during the processing of a form al application for reenlistment. The Applicant is directed to the Addendum of this document , specifically the paragraph s concerning s and Employment Opportunities.

: (Decisional) ( ) . Applicant contends that his misconduct, which resulted in an Under Other Than Honorable Conditions characterization of service, was resultant from his youth, his immaturity, and personal family stress issues during his enlistment period and were mitigating factors in determining his overall service characterization. I n reviewing discharges, the Board 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. The Applicant contends that his problems in the Marine Corps are attribut able to mistakes “I made when I was young.” The NDRB determined that the Applicant's youth or age was not a mitigating factor in his misconduct . The Applicant’s record of service was marred by two non-judicial punishments while in an entry level training status for violation s of the Uniform Code of Military Justice, Article 86 . Violation of Article 86 in excess of 30 days is considered a serious offense, punishable by punitive discharge and confinement if adjudicated by a special or general court-martial. In the Applicant’s case, the violation was exacerbated by the fact that civilian law enforcement personnel terminated the period of unauthorized absence through apprehension after a declaration of desertion was issued and a warrant for his arrest/return was released. The command did not pursue a punitive discharge but opted instead for an administrative discharge. Given the severity of the misconduct and the Applicant ’ s intent to remain absent, t he Board determined an upgrade would be inappropriate.

The Applicant contends his discharge should be upgraded based on his record of service , which was good apart from a single period of misconduct. Despite a Marine’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. An Under Other Than Honorable Conditions discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record . The Applicant’s record of service was marred by two non-judicial punishments for violation of Articles 86 of the UCMJ while attending initial entry level training. Violation of Article 86 - in excess of 30 days - is a s erious military offense, punishable by punitive discharge and confinement if adjudicated by a special or general court-martial. Leniency was shown by the command when it did not pursue a punitive discharge , which opted instead for the more lenient administrative separation . The applicant absented himself from his appointed place of duty – initial training in his military occupational specialty – and continued to do so even after receiving a non-judicial punishment and a formal, service record book documented counseling regarding the consequences of any continued misconduct. The Board determined an upgrade would be inappropriate.

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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USMC | DRB | 2009_Marine | MD0902480

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