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USMC | DRB | 2009_Marine | MD0902489
Original file (MD0902489.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090911
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)       19951229 - 19960716     Active:            19960717 - 19991115
                                             19991116 - 20031028
                                             20031029 - 20071108

Period of Service Under Review:
Date of Current Enlistment: 20071109     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20090904      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 26 D a y ( s )
Education Level:        AFQT: 43
MOS: 0151 / 01 93
Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle Pistol (3) CoC (3) LoC CoA (2) LoA (2) MM

Periods of UA / CONF :

NJP:

- 20080327 :       Article ( Fraud against the U.S. Government - f il ling a false supplemental travel claim for $586.26)
         Awarded: Suspended:

SCM:

SPCM:

CC:

Retention Warning Counseling :

-20050415:       For your assignment to the Marine Corps Body Composition Program. Failure to take corrective action and meet your specified goals may result in administrative separation from the Marine Corps.

-200510XX:       Counseled regarding your extension on the Marine Corps Body Composition Program and having made satisfactory progress, but still failing to make your established goals. You are further counseled that failure to take correction action and meet your height/weight body fat reduction goals while on this 6 month extension will result in administrative separation from the United States Marine Corps.

- 20080327 :       For your recent NJP for violation of Article 13 2 , fraud against the US Government. Specifically, you filed a fraudulent travel claim on 20071111, a claim you knew was to be false and fraudulent. Your actions are unsatisfactory and not in accordance with our Core Values of Honor, Courage, and Commitment.

- 200810XX :       For your failure of a scheduled semi-annual Physical Fitness Test (PFT) on 20081006. You also failed the semi-annual PFT on 20080602. This constitutes two consecutive PFT failures. Your actions are unsatisfactory and not in accordance with the high state of readiness required by the USMC. Per MCO 6100.13, you will remain on a Remedial Conditioning Program and you will be processed for administrative separation.

- 20090112 :       For your inability to pass the second half of the year annual PFT on 20081006 ; in that you failed the run portion of the event with a run time of 31:21. Your inability to comply with MCO 6100 . 13 (MCPFP) is an absolute lack of initiative, good judgment, and commitment expected of a Marine. This type of behavior is unacceptable and will not be tolerated.

Administrative Corrections to the Applicant’s DD 214

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

 “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19960717 TO 20071108 ”
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:  
         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 :      (DD-149 – Application for Correction of Military Record, BCNR)

Pertinent Regulation/Law

 A. Paragraph 6206, UNSATISFACTORY PERFORMANCE , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), 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 .



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

Applicant’s Issues

 1 .       Decisional issues : Applicant contends that his 13 years of active service warrant an H onorable characterization of his service at discharge. The Applicant contends that characterization of his service as General ( Under Honorable C onditions ) was an unjust determination given the basis for discharge was the failure of the physical fitness test .

Decision

Date: 20 10 0930            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.

T he Applicant identif ied one decisional issue for the Board. Additionally, t he Board complete d a thorough review of the circumstances that led to the Applicant’s discharge , and the discharge process , to ensure the discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included 6105 counseling warnings and one during the current enlistment period f or o f the Uniform Code of Military Justice (UCMJ): Article 132 ( Fraud against the United States; specifically, submission of a fraudulent supplemental travel claim for $586.26).

The NDRB reviewed the Applicant’s administrative separation package to determine whether the Applicant was afforded his rights in accordance with the Marine Corps Separation and Retirement Manual. When notified of a dministrative separation processing using the administrative board notification procedure, the Applicant waived his right to consult with a qualified counsel, to submit a written statement, or to r equest a hearing before an administrative board .

The Applicant provide d the NDRB a copy of his Application for Correction of Military Record (DD-149) submitted to the Board for Correction of Naval Records (BCNR) to amend his re-enlistment code . The Applicant provided no other documentation that was not already resident in his official military performance file .

: (Decisional) ( ) . The Applicant contends that his 13 years of active service warrant an H onorable characterization of his service at discharge. The Applicant contends that characterization of his service as General (Under Honorable Conditions) was an unjust determination given the basis for discharge was the failure of the physical fitness test.

The Applicant was administratively separated on 200 90904 b y reason of unsatisfactory performance with a service characterization of G eneral ( U nder H onorable C onditions). The specific basis for th e separation w as the Applicant’s three consecutive failures of the Marine Corps Physical Fitness Test (PFT) : 02 June 2008 , 06 Oct 2008 , and 05 June 2009. Failure of the semi-annual PFT is a failure to meet the standards expected and required of a Marine in accordance with Marine Corps Order 6100.13 (Marine Corps Physical Fitness Program). In the Applicant’s case, the three consecutive failures were further aggravated by the fact that the Applicant was a Staff Non-Commissioned Officer , with over 12 years of active service and a full awareness of Marine Corps Standards. As required by MCO 6100.13, the Applicant was assigned to a remedial physical conditioning program in which members of the command actively participated . Furthermore, the Applicant was formally counseled per paragraph 6105 of the MARCORSEPMAN that failure to take corrective action may result in administrative separation. The Applicant was afforded a reasonable opportunity to take corrective action . After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no impropriety in the discharge action .

 For discharges based on Unsatisfactory Performance , the MARCORSEPSMAN indicates that proper characterizations are either H onorable or G eneral and references paragraph 1004 for additional guidance. Paragraph 1004 indicates that for involuntary separations, an H onorable characterization is appropriate only if the Marine’s service, notwithstanding the basis for separation, is otherwise so meritorious that any other characterization would be clearly inappropriate. A G eneral is appropriate if the 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.

In th e case of the Applicant , his service record during the current enlistment period was also marred by a non-judicial punishment for violation of the UCMJ; specifically, Article 132 - Fraud against the United States. T his violation of the UCMJ was especially egregious because the Applicant w as the C ommand’s A dministrative C hief, directly responsible to the command and the government for the proper, ethical, and legal settlement of travel claims against the government. This violation of the UCMJ is considered a serious offense that could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentence by a special or general court - martial. The Board found this to be a significant negative aspect in the Applicant’s conduct or performance, outweighing the positive aspects of his performance and conduct during the enlistment period. A fter a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the character of discharge was equitable and appropriate. As such, no relief is warranted.

The NDRB will recommend to the Commandant of the Marine Corps that the Applicant’s DD 214 be corrected to note that he had continuous honorable active service from 17 July 1996 to 8 November 2007. The General characterization of service only pertains to the Applicant’ s most recent enlistment, and his actions during that enlistment were what was considered in assigning him the General discharge.

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 GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shal l remain UNSATISFACTORY PERFORMANCE.

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, RE-Codes , 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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