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USMC | DRB | 2009_Marine | MD0902572
Original file (MD0902572.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090916
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)       20000914 - 20010806     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20010807     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20051213      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 07 D a y ( s )
Education Level:        AFQT: 87
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle (2) (Iraq) (Iraq) CoC

Periods of UA :   20040512 – 20040615, 35 days; 20041023 – 20050124, 94 days       CONF :

NJP:

- 20021209 :      Article 108 (Military property of United States – Loss, damage, destruction, or wrongful disposition – alter birth date of Military ID to appear older)
         Awarded: Suspended:

- 20040512 :      Article (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer – disrespectful in language and action toward the Company GySgt 0615, 20040124)
         Article (Failure to obey order or regulation), 3 specifications
         Specification 1: Speeding on base, 67 in a 55.
         Specification 2: Underage drinking.
         Specification 3: JOB gear not staged at 0800, 20040421 as ordered.
         Article (Drunken or reckless driving – 0300, 20040417 drove vehicle while under the influence of alcohol BAC was .0839)
         Awarded: Suspended:

SCM:

-20040616:       Article 86 (Absence without Leave, 20040512-20040615 (35 days))
        Awarded: RIR (FOP/RESTR EPD – NFIR) Suspended: NFIR

SPCM:

CC:

Retention Warning Counseling:

Administrative Corrections to the Applicant’s DD 214

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

 “ 2001 08 07 ”
 “ (35) 20040512 – 20040615, (94) 20041023 – 20050124 ”

The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected .
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. 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. Marine Corps Order P1070.12K W/Ch 1 (Marine Corps Individual Records Administration Manual (IRAM)) effective
14 July 2000 until present, paragraph 4005.


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

Applicant’s Issues

 1.       Nondecisional issues : None
2.       Decisional issue s : (1) (Propriety) Applicant contends that his declared desert er conduct mark of 0.0 should have been deleted from his record; he turned himself in to authorities and was found guilty of unauthorized absence, not desertion. Without the 0.0 mark, the Applicant’s average in-service proficiency and conduct marks would have warranted an H onorable characterization of service. (2) (Equity) Applicant contends that his discharge characterization of service warrants upgrade; he completed his service honorably , to include his time lost due to unauthorized absence.

Decision

Date: 20 10 1015            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 two decisional issues to the Board. The Board completed a thorough review of the circumstances that led to his discharge , and the discharge process , to ensure the discharge met the pertinent standards of both equity and propriety. No 6105 retention- counseling warnings were found in the Applicant ’ s service record , which was marred by two non-judicial punishments (NJPs) for the following violations of the Uniform Code of Military Justice (UCMJ):
•         Article 91 ( Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer – disrespectful in language and action toward the Company GySgt on 20040124)
•         Article 92 ( Fail ure to obey order or regulation - 3 specifications ;      Specification 1 : Speeding on base ; Specification 2: D rinking alcohol under the legal age limit; S pecification 3: Failure to follow orders to stage gear for inspection on 20040421 , as ordered )
•         Article 108 ( Military property of the United States, Loss, Damage or destruction, or wrongful disposition - specifically; altering his Military Identification Card to appear older )
•         Article 111 (Drunken or reckless driving – 0300, 20040417 dr iving a vehicle while under the influence of alcohol with a B AC of .0839) .
Additionally, the Applicant’s record reflects a Summary Court - Martial for violation of the UCMJ : Article 86 (Absence without leave for the period 20040512 – 20040615 (35 days) ).

Not found in the Applicant’s record of service is the result of any punitive or administrative action taken by the command to adjudicate a period of unauthorized absence from 20041023 – 20050124 (94 days) during which time the Applicant was formally declared a deserter and dropped from the unit rol l s.

: (Decisional) ( ) . Applicant contends that his declared desert er conduct mark of 0.0 should have been deleted from his record; he turned himself in to authorities and was found guilty of unauthorized absence, not desertion. Without the 0.0 mark, the Applicant contends that his average in-service proficiency and conduct marks would have warranted an H onorable characterization of service.

In 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. In the Applicant’s case, the Board presumes regularity in the governmental affairs in that the Applicant’s period of Unauthorized Absence (20041023-20050124) was either administratively or punitively adjudicated by the command. Per the Applicant ’ s statement on his DD-293 Application, “I was found guilty of unauthorized absence, not desertion. I returned of my own free will and served my punishment for unauthorized absenc e. ”

When a Marine absents himself from his unit in excess of 30 days , he is declared a deserter and a DD Form 553 (Deserter/Absentee Wanted by the Armed Forces) is prepared and submitted to H eadquarters Marine Corps f or entry into the National Crime Information Center (NCIC) of the F ederal B ureau of Investigation (FBI) . This action serves notice to Federal, State, and Local Law Enforcement Agencies of a service member ’ s status as wanted . The Applicant was declared a deserter on 20041123 and a DD Form 553 was submitted as required .

In accordance with the Marine Corps Individual Records Administration Manual (IRAM), when a Marine is declared a deserter, two sets of proficiency and conduct marks are required to be entered into his service record :
1.       PD (prior to desertion) marks - submitted for the period of time prior to desertion (marks are as determined by the Commander), and
2.       DD (Declared Deserter) mark s - entered upon date of desertion (a mark of N/A for proficiency and a mark of 0.0 for conduct will be entered) .
Paragraph 4005 of the IRAM specifies that the conduct mark of "0" resulting from declaration of desertion is not removed if the Marine is tried for desertion and is convicted of either desertion or the lesser-included offense of UA, or is tried and convicted of UA, or receive s NJP for UA. Additionally, the "PD" markings remain.

The Applicant was declared a deserter 20041123 and received PD proficiency and conduct marks of 3.8/3.5 and DD marks of N/A/0.0. The Applicant, by his own admission, was determined to be guilty of Unauthorized Absence at either non-judicial punishment or a summary court martial. As such, the DD marks are required to remain in the Applicant’s service record. The Board determined that the declared deserter proficiency and conduct marks were proper; as such, the Applicant’s average in-service proficiency and conduct marks were both proper and equitable. Relief not warranted .

: (Decisional) ( ) . Applicant contends that his discharge characterization of service warrants an upgrade , because he completed his service obligation honorably, including his time lost due to his unauthorized absences. A n Honorable discharge is warranted when the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel . When such conduct is demonstrated , it is appropriate to characterize that service under Honorable conditions. A characterization of service as General (Under Honorable Conditions) at discharge is appropriate if the member’s service has been honest and faithful , but significant negative aspects of the member’s conduct or performance outweigh the positive aspects of the member’s military record. In accordance with the Marine Corps Separation and Retirement Manual, the m inimum acceptable average proficiency and conduct markings during an enlistment for an Honorable characterization of service are 3.0 and 4.0 , respectively. Failure of a Marine to achieve either of these standards is evidence of significant negative aspects, outweighing all but the most meritorious military records. Marines who do not achieve these standards should not receive an H onorable discharge .

Although the Applicant’s official service records are incomplete, his record of service is marred with at least two non-judicial punishments and at least one summary court - martial. The Applicant’s average in-service proficiency and conduct marks were 4.3/3.8, respectively. The Board determined the Applicant’s conduct, which forms the primary basis for determining the character of his service, reflected a significant departure from the conduct expected of a service member and the awarded characterization was appropriate; an upgrade would be inappropriate. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service and record entries, 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 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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