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USMC | DRB | 2010_Marine | MD1000245
Original file (MD1000245.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20091029
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:            19990 922 – Present: Currently on Active
                                             Du ty, US Army, 501st SBDE, ARFOR, Korea

Period of Service Under Review:
Date of Current Enlistment: 19950513     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20000707      H ighest Rank:
Length of Service:
         Inactive:        Y ea r ( s ) M on th ( s ) 27 D a y ( s )
         Active:  Y ea r ( s ) M on th ( s ) 00 D a y ( s )
 Education Level:        AFQT: 53
MOS: 3051
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

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 .       The Applicant contends that he was conditionally released from the Marine Corps Reserve to enlisted in the United States Army, which he did. Applicant contends that the discharge received from the Marine Corps Reserve was improper in that he was conditionally released and enlisted as specified. As such, A pplicant seeks correction to his narrative reason for separation and the corresponding characterization of service and re-enlistment code from the Marine Corps.

Decision

 Date : 20 10 1119            Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall INTERDEPARTMENTAL TRANSFER .

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 for t he 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 his discharge met the pertinent standards of both equity and propriety.

The Applicant’s record of service include d no nonjudicial punishments, no summary courts - martial, no special courts - martial, no civilian convictions , and no 6105 retention-counseling warning s . The Applicant was a satisfactorily drilling reservist with 4th SCAMP, 3rd Force Reconnaissance Company, Mobile , Alabama. The Applicant requested a conditional release from his obligation with the Marine Corps Reserve in order to enlist in the United States Army. The Applicant submitted a DD Form 368 (Request for Conditional Release) to his parent USMC Reserve Inspector - Instructor (I-I) on 10 May 1999 seeking release from his Marine Corps reserve obligation in order to enlist in the active duty U.S. Army. The Inspector-Instructor approved the request and signed the DD-368 on the same day. The A pplicant completed his application with the Army and was subsequently enlisted in the Army on 22 September 1999 . At the time of enlistment in the Army, the Applicant’s service record reflects that he failed to attend one drill weekend (5 drills) in July 1999 .

After the Applicant enlisted in the U.S. Army, the Inspector-Instructor staff erroneously mustered the Applicant for unexcused absences from drill for October (5 drills), Nov ember (4 drills) , and January (4 d rills). While in an unexcused drill status, the command administratively reduced the Applicant in rank to Private First Class . On 31 January 2000, the command attempted to notify the Applicant by certified mail of their intent to discharge him administratively from the Marine Corps Reserve due to Unsatisfactory Participation with an Under Other Than Honorable Conditions characterization of service . The basis for separation was the 13 missed drills that were entered into the Marine Corps Total Force System. Prior to administrative reduction in rank, the Applicant’s Proficiency and Conduct markings were 4.5/4.5, respectively , with his last two evaluations being 4.7/4.7 and 4.8/4.8.

: (Decisional) ( ) . The Applicant contends that he was conditionally released from the Marine Corps Reserve to enlist in the United States Army, which he did. The Applicant further contends that the discharge received from the Marine Corps Reserve was improper in that he was conditionally released and enlisted as specified. As such, A pplicant seeks correction to his narrative reason for separation and the corresponding characterization of service and re-enlistment code from the Marine Corps.
The NDRB reviewed the Applicant’s issues and the discharge process. The Inspector-Instructor conditionally released the Applicant from his obligation with the Marine Corps Reserve. The Applicant complied with the requirements of the conditional release; he remained in a satisfactory drilling status until he was enlisted into the active component of the U.S. Army on 22 September 1999 . The NDRB determined that the I-I erroneously mustered the Applicant as unexcused and subsequently separated the Applicant for failure to participate in the Marine Corps Reserve on the basis of those unexcused absences from drill. Due to administrative error, the A pplicant was not released properly from his obligation and the interdepartmental transfer was not correctly affected. Department of Defense records indicate the Applicant is currently serving honorably on active duty with the U.S. Army and has been, without break in service, since his release from the Marine Corps Reserve and his enlistment in the Army on 22 September 1999 . The NDRB determined that the characterization of service and the narrative reason for separation were improper; as such, relief is warranted.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, the U.S. Army documentation of current active service, and the discharge process, the Board found the discharge was improper. Therefore, the awarded characterization of service shall and the narrative r eason for separation shall change to INTERDEPARTMENTAL TRANSFER in accordance with paragraph 6403 ( Voluntary release/transfer ) of the Marine Corps Separation and Retirement Manual. Additionally, the NDRB recommends that Headquarters Marine Corps amend the Applicant’s re-enlistment code to one more applicable to a service member who has served honorabl y and was recommended for, was approved , and was inducted in to the Active Component of the U.S. Army.


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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