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USMC | DRB | 2010_Marine | MD1000410
Original file (MD1000410.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20091117
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)       19971017 - 19980817     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19980818     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20021212      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 00 D a y ( s )
Education Level:        AFQT: 58
MOS: 0621
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle ( 2 ) MM

Periods of UA / CONF :     UA 20020603 - 20020904 ( 93 da ys )
                                    CONF 20021025 - 20021117 (24 days)
NJP:

- 20001120 :       Article (Failure to obey order , regulation), 2 specifications
          Specification 1: Underage drinking , 20001014
         Specification 2: Underage drinking, 20001106
         Awarded : Susp ended:

- 20020111 :       Article (Fail to obey order, driving on base with suspended license, 20011226)
         Awarded : CCU (7 days) Susp ended: (6 months)

- 20020325 :      Article (Willfully disobey noncommissioned officer, 20020301)
          Awarded : (14 days) Susp ended: (7 days suspended for 6 months)
- 20020913 :       Article (Absence without leave, 20020603 - 20020904)
         Awarded : Susp ended:

SCM:

- 20021025 :       Art icle (Absence without leave, 20021002 and 20021009)
         Art icle ( Breaking r estriction, 20021001, 20021004, 20021007, 20021009)
         Sentence :

SPCM:

CC:

Retention Warning Counseling :

- 20010124 :       For the following deficiencies: Substandard performance. You have been consistently late for scheduled formations and inspections. You have failed to positively respond to verbal and written counseling by your immediate supervisors. Your failure to report to said appointed places of duty are in violation of Article 86 (unauthorized absence) of the UCMJ. Your lackadaisical attitude and failure to respond to counseling is unsatisfactory.

- 20011211 :       For the following deficiencies: Substandard performance; in that you did lose military property (MOLLE pack frame, ruck sack, sleep system, and poncho) due to your own negligence. You did not offer to pay for lost property and the Battalion Commander has referred the matter for disciplinary action. Negligent loss of military property is a violation of Article 108 of the UCMJ. Additionally, your untimely reporting of the loss of said property (MEBEX Sep 01) is unacceptable.

- 20021021 :       For violation of UCMJ Article 86 and 134 you were referred to a Court-Martial for unauthorized absence (2 counts) and breaking restriction (4 counts).

Administrative Corrections to the Applicant’s DD 214

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

          Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “ RIFLE MARKSMANSHIP BADGE NDSM SSDR(3) HSM MUC MM (3) ”

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 :        

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 .



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

Applicant’s Issues

 1.       Applicant seeks an upgrade to obtain GI Bill benefits.

Decision


 Date: 20 1 1 01 13            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 did not identify any decisional issues to the Board. However, the Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included 6105 counseling warnings for substandard performance and for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave , 93 days, 3 Jun-4 Sep 2002); Article 91 ( Willfully disobeying a noncommissioned officer, 1 Mar 2001 ) ; and Article 92 ( Failure to obey order or regulation: underage drinking on 14 Oct and 6 Nov 2001, and driving on base with a suspended license on 26 Dec 2001); and for o f the UCMJ: Article 86 ( Absence without leave , 2 Oct and 9 Oct 2002 ) and Article 134 (Restriction, breaking on 1 Oct, 4 Oct , 7 Oct, and 9 Oct 2002) . Based on the offenses committed by the Applicant, command could have opted to process him administratively for separation due to pattern of misconduct or the commission of a serious offense. Instead, the Applicant was allowed to make up for the time lost due to unauthorized absence and confinement and reach his end of active obligated service (EA O S). In accordance with the guidance set forth in the Marine Corps Separation and Retirement Manual (MARCORSEPMAN), his command discharged him with a General (Under Honorable Conditions) characterization of service , which is warranted if a 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. Additionally, when a service member reaches EAOS and their average proficiency marks are below 3 .0 and average conduct marks below 4.0, the Marine can be awarded a General ( Under Honorable Conditions ) discharge. The Applicant’s four- year enlistment PRO/CON averages were not found in the records, but based on the significant misconduct mentioned previously, the Board determined that the characterization received was appropriate and equitable. The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects that the Applicant failed to meet the requirements of conduct expected of all Marines , regardless of grade and length of service , and falls short of what is required for an upgrade to H onorable.

 : (Nondecisional) The Applicant seeks an upgrade to obtain GI Bill benefits. T he U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. 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 , and therefore this issue does not serve to provide a foundation upon which the Board can grant relief.
Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and admnistrative 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, Automatic Upgrades, 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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