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USMC | DRB | 2010_Marine | MD1000103
Original file (MD1000103.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20091015
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:         NONE              Active:  

Period of Service Under Review:
Date of Current Enlistment: 19950824     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 200105 19      H ighest Rank:
Length of Service:
         Inactive:        Y ea r ( s ) M on th ( s ) 13 D a y ( s )
         Active:  Y ea r ( s ) M on th ( s ) 25 D a y ( s )
 Education Level:        AFQT: 70
MOS: 5811
Proficiency/Conduct M arks (# of occasions): /          Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle , MUC, MM

Periods of UA / CONF :

NJP:     SCM:     SPCM:    CC:      Retention Warning Counseling :

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 :        

Pertinent Regulation/Law

 A. Paragraph 6213 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 August 1995 until
31 August 2001.
B. Marine Corps Reserve Administrative Management Manual, MCO P1001R.1, Chapter 3, Reserve Participation and Administrative Procedures, paragraph 300.
C. Table 6-1 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 August 1995, Guide for Characterization of Service.
D . 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. Nondecisional issue : Applicant seeks an upgrade to discharge characterization of service in order to better his employment opportunities with the local police and federal government.

2. Decisional issues : (Equity) The Applicant contends that he was discharged unfairly for missing drills - which he was approved to miss - while attending a 3-month long, resident Sheriff police training academy. Applicant contends that it was a routine, normal occurrence to received excused absence while attending a resident police or fire training academy and that his separation was overly harsh and unjustified, especially given the fact that he was within months of completing his mandatory drilling obligation after 5 satisfactory years with the U SMCR and numerous active duty recruiting periods.

Decision

Date: 20 10 1118            Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall SECRETARIAL AUTHORITY

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 identif ied one decisional issue to the NDRB . T he Board complete d a thorough review of the circumstances that led to the Applicant’s discharge , and the discharge process , to ensure his discharge met the pertinent standards of equity and propriety.

The Applicant’s record of service included no retention warning counselings, no non-judicial or judicial punishments, and no civilian convictions. The Applicant enlisted with a pre-service waiver for illegal drug use (marijuana) without law enforcement involvement. Upon discharge, the Applicant had completed five satisfactory years of a six-year contract as a drilling reservist.
Furthermore, the Applicant ’ s service record reflects two extended periods of Active Duty Special Work with Marine Corps Recruiting Command and his twice receiving bonus points toward promotion for referring local Applicants to enlist in the Marine Corps.

The Command notified the Applicant of their intention to process him for discharge after missing 3 months of unit drills. The Applicant was notified, by certified return receipt mail , of the proposed separation for unsatisfactory participation in the Selected Marine Corps Reserve. The notification of proposed separation and the Applicant’s election of rights were mailed to the Applicant’s official home address contained in his service record and w ere receipted for at that address. Bas e d on the available documentation in the Applicant’s service record, the Applicant did not respond to the command ’ s notification or elect his rights to an administrative board hearing procedure, to consult with a qualified counsel, or to submit a written statement to the Separation Authority.

In addition to the Applicant’s statement on his form DD-293, t he Applicant provided documentation for the NDRB’s consideration that included verified attendance at the Sheriff’s academy resident training program .

: (Nondecisional) . The Applicant seeks an upgrade to his discharge characterization of service in order to better employment opportunities with the local police and federal government agencies. 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.

: (Decisional) ( ) . The Applicant contends that he was discharged unfairly after missing drills - which he was approved to miss - while attending a 3-month long Sheriff police-training academy. After a thorough review of the official record , supporting documents, facts, and circumstances unique to this case, the NDRB discerned an inequity in the discharge action and characterization of the Applicant’s service. By a unanimous vote, t he NDRB determined that relief is warranted and that the characterization of the discharge sh all b e upgraded to H onorable - which more accurately reflects the Applicant ’ s overall conduct and performance during his service .

The Applicant did not seek a change to the narrative reason and separation code on his DD-214 . H owever, in conjunction with the Board’s determination of i nequity and impropriety regarding the Applicant’s administrative separation and characterization of service as Under Other Than Honorable Conditions, the NDRB determined that the Applicant’s narrative reason for separation and corresponding separation code no longer accurately reflect his discharge. In cases where no other reason for separation set forth in the Marine Corps Separation and Retirement Manual is appropriate, the Secretary of the Navy has the authority to direct the separation of a member prior to the expiration of their term of service. There is no other narrative reason for separation that accurately describes the reason the Applicant was separated ; t herefore, the NDRB determined that the reason for the Applicant’s discharge shall change to Secretarial Authority . RELIEF WARRANTED .

 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 the discharge was improper and inequitable . Therefore, the awarded characterization of service shall and the narrative reason for separation shall change to SECRETARIAL AUTHORITY .


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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