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USMC | DRB | 2010_Marine | MD1000012
Original file (MD1000012.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090923
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)       20051022 - 20051113     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20051114     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20060823      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 18 D a y ( s )
Education Level:        AFQT: 81
MOS: 9900
Proficiency/Conduct M arks (# of occasions): /   Fitness R eports:
Awards and Decorations ( per DD 214):      Rifle

Time Lost: UA (22 days) 20060618 - 20060710
NJP:
- 20060711 :       Article (UA 20060618-20060710, 22 days)
         Awarded : Susp ended:
SCM:

SPCM: NONE: Applicant requested Separation in Lieu of Trial by Special Court - Martial     
                  (Charges referred for violation of Article 90, UCMJ)

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:

          “ 06061 8 -060710 ”
        
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:           Rehabilitation/Treatment:                  Criminal Records:       
         Personal Documentation :           Community Service:                References:     
         Department of VA letter:                  Oth er Documentation:    
                  Additional Statements :
          From Applicant:            From /To Representation:            From /To Congress m ember :        


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

Applicant’s Issues

 1.       Nondecisional issues : Applicant requests upgrade in characterization of service to General, Under Honorable Conditions in an effort to enlist in the Louisiana National Guard or the Marine Corps Reserve to serve his community, state , and count r y. Applicant is also seeking a change to better his opportunity for employment with local police.

2.       Decisional issues: Applicant infers that his conduct was the result of a youthful and immature decision when confronted with personal family problems, but has since learned from his mistakes and no w that his personal problems have resolved, he wishes to serve his country again.

Decision

 Date: 20 10 1022            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 provided no documentation or evidence to rebut the government ’ s presumption of regularity in this instance .

The Applicant identif ied one decisional issue and one non-decisional issue for the Board ’s consideration . 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 was 8 months and 18 days, which included completion of Marine Corps Recruit Training, 28 days of permissive temporary duty as a recruiter assistant in his home town , and 13 days of training at his Military Occupational Specialty (MOS) school. The Applicant ’ s military service record included no 6105 retention- counseling warnings and one for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave; specifically absenting himself from his unit for 22 days). Additionally, on 11 July 2007, the Applicant’s command pre ferred charges for a Special Court - Martial against the Applicant for violation of Article 90 of the UCMJ (willfully disobeying the lawful order of a superior commissioned officer) .
When faced with trial by Special Court - Martial, the Appl icant requested administrative separation in lieu of tr i al. Prior to submitting this request, the Applicant was afforded the opportunity to consult with counsel. The trial counsel explained each element of the offense that he was charged with . I n writing, the Applicant clearly stated he understood the elements of the charge and voluntarily admitted his guilt to the charge and specification . Furthermore, t he Applicant fully acknowledged the likely outcome would be separation with a characterization of service of Under Other Than Honorable Conditions and his full understanding of the impact that characterization would have on both v eterans benefits and job employment opportunities.

: (Nondecisional) The Applicant requests an upgrade in the characterization of his service to General, Under Honorable Conditions in an effort to enlist in the Louisiana National Guard or the Marine Corps Reserve to serve his community, state, and country. Applicant is also seeking a change to better his opportunity for employment with local police.

The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces; as such, the NDRB is not authorized to change a reenlistment code. Reenlistment policy of the Marine Corps is promulgated by the Commandant, United States Marine Corps, Code MMEA, 3280 Russell Road, Quantico, VA 22134. Neither a less than fully honorable discharge , nor an unfavorable "RE" code is, in itself, a bar to reenlistment. A request for a waiver is normally done only during the processing of a formal application for enlistment with a recruiter. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.

: (Decisional) ( ) . The Applicant infers that his conduct was the result of a youthful and immature decision when confronted with personal family problems, but has since learned from his mistakes and now that his personal problems have resolved, wishes to serve his country again.

The Applicant contends the characterization of his discharge should be upgraded because the poor decisions he made were the result of personal problems that were emotionally hard to cope with during his enlistment. 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. The record reflects the Applicant underwent a period of unauthorized absence totaling 22 days while assigned to his MOS training school . There is no evidence in the record, nor did the Applicant provide any evidence , to indicate that he attempted to utilize the numerous services available for service members who undergo personal problems during their enlistment such as the Navy Chaplain, Navy and Marine Corps Relief Society, Family Advocacy Programs, or his chain of command .

The NDRB recognizes serving in the Marine Corps is challenging and that o ur country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. M ost members serve honorably and therefore earn their honorable discharges. In fairness to those members of the Marine Corps , commanders and separation authorities are tasked to ensure Marines and sailors receive no higher characterization than is due. An honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. A general (under honorable conditions) discharge is warranted when the quality of the member’s service has been honest and faithful , but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. A discharge under other than honorable conditions is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the naval service.

The Applicant’s 8 months of total service included a n onjudicial punishment for violation of Article 86 of the U CMJ and the referral of charges for violation of Article 90 of the UCMJ to a Special Court Martial. After being administratively punished for his unauthorized absence from training for 22 days, the Applicant was afforded the opportunity to continue his goal of becoming a Marine by restart ing training with a new class and completing his entry level training requirement . The Battalion Commander personally ordered the Applicant to resume training to fulfill his contractual obligation, as it was his duty to do so ; the Applicant refused. T he Applicant’s deliberate mis conduct reflect ed a willful failure to meet the requirements of his contract and constitute d a significant departure from the conduct expected of members of the naval service. His willful misconduct falls far short of that required for an upgrade ; t he 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 and Post-Service Conduct .

Pertinent Regulation/Law

 A. Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL , 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 IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications .

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 .


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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