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USMC | DRB | 2010_Marine | MD1000428
Original file (MD1000428.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)       20030822 - 20030824     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20030825     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20071003      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 19 D a y ( s )
Education Level:        AFQT: 84
MOS: 3043
Proficiency/Conduct M arks (# of occasions): /          Fitness R eports:

Awards and Decorations ( per DD 214): Rifle , (3) , , , , CoA (2) ,

Periods of UA: 20070716-20070805 ( 20 days )
Periods of CONF : 20070805-20070808 (Pre-Trial Conf 4 days ); 20060607-20060622 (SCM Confinement 16 days)

NJP:

- 20041214 :      Article (Failure to obey order or regulation) , 3 specifications
          Specification 1: Departed without signing out of the liberty logbook
         Specification 2: Cited for not having a liberty buddy
         Specification 3: Cited for driving a POV without proper license
          Awarded: Suspended:

- 20070906 :      Article ( UA 20070716-20070805, 20 days)
         Article (False official statement – Falsified Official Leave/Travel Documents )
         Awarded: Suspended:

SCM:

- 20060607 :       Art icle ( Larceny), 2 specifications
         Specification 1: Steal a flat screen computer monitor
         Specification 2: Wrongfully appropriate barracks #3619 master key.
         Article 130 ( Housebreaking)
         Sentence : (20060607-20060622, 16 days)

SPCM:    CC:





Retention Warning Counseling :

- 20041214 :       For your misconduct for the following incidents that occurred on 20041211, driving a POV without proper license and violating liberty buddy program.

- 20070906 :       For operating a vehicle on 20070830 while under the influence of alcohol.

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.       Nondecisional issues : The Applicant seeks a change in characterization of service at discharge to Honorable in order to facilitate re-enlistment and access to G.I. bill benefits.

2.       Decisional issues : (Equity) Applicant contends that although he made mistakes as a young Marine, his overall service was Honorable and that his most recent proficiency and conduct markings in his record of service were unjust and unwarranted. As such, the Applicant seeks a change in his characterization of service at discharge from General (Under Honorable conditions) to Honorable.

Decision

 Date : 20 1 1 0201            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 NDRB presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicants identified one decisional issue for the NDRB’s consideration .

The NDRB 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. The Applicant ’ s record of service includes entry into the N aval service with a waiver for an adjudicated serious law violation. In service, the Applicant’s service record reflected two 6 105 retention-counseling warnings for adjudicated misconduct at a Commander’s nonjudicial punishment (NJP) and for operating a motor vehicle while under the influence of alcohol. The Applicant’s service record was further marred by two non-judicial punishments for the following violations of the Uniform Code of Military Justice (UCMJ):

•         Article 9 2 - Failure to obey lawful order or regulation - 3 specifications ( Specification 1: Departing on liberty while in Okinawa , Japan without signing out in the unit liberty logbook as required by order to do so; Specification 2: for departing the military installation on liberty without a liberty buddy, as it was his required duty to do so ; Specification 3: f or driving a p rivate ly owned vehicle without proper licens ing )
•         Article 86 - Absent without leave ( Absented himself from his unit, without authority, and did remained absent without authority for a period of 20 days )
•         Article 107 – False o fficial s tatement ( Falsified leave and travel documents to depart Okinawa , Japan while in an unauthorized leave status and enter the Republic of the Philippines ) .

Additionally, the Applicant’s record reflects a Summary Court - Martial for violation of the UCMJ: Article 121 ( Larceny - 2 s pecifications: (1) Wrongfully appropriated the military barracks room master key, property of the U.S. Government and (2), theft of a flat screen computer monitor ) and Article 130 (Housebreaking - unlawfully entered a private room with intent to commit a criminal act) . Upon being found guilty at trial by S ummary C ourt -M artial, the Applicant was confined in the Base Brig for 16 days of a 20 - day sentence.

Nondecisional Issues: The Applicant seeks a change in characterization of service at discharge to Honorable in order to facilitate re-enlistment into military service and access to Department of Veterans Affairs (VA) educational benefits. T he NDRB has no authority to upgrade a discharge characterization of service for the sole purpose of enhancing reenlistment opportunities . Additionally, t he NDRB has no jurisdiction or authority over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces and is not authorized to change a reenlistment code. Only the Board for Correction of Naval Records can make changes to reenlistment codes. Reenlistment policy of the Marine Corps is promulgated by the Commandant, United States Marine Corps, Code MMEA, 3280 Russell Road, Quantico, VA 22134. A request for a waiver may be submitted during the processing of a formal application for reenlistment through a recruiter; neither a less than fully honorable discharge, nor an unfavorable "RE" code is, in itself, a bar to reenlistment.

The U.S . Department of Veterans Affairs determines eligibility for post-service benefits, not the Naval Discharge Review Board. There is no requirement, or law, that grants re-characterization of a discharge solely for obtaining v eterans' benefits; as such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.
: (Decisional) ( ) . The Applicant contends that although he made mistakes as a young Marine, his overall service was Honorable and that his most recent proficiency and conduct markings in his record of service were unjust and unwarranted. As such, the Applicant seeks a change in his characterization of service at discharge from General (Under Honorable C onditions) to Honorable.

The Applicant has requested an upgrade in his characterization of service to Honorable. An 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. Most service members serve honorably and therefore earn their honorable discharges. In fairness to those service members , c ommanders and separation authorities are directed to ensure that undeserving Marines receive no higher characterization than is due . A ccordingly, a characterization of service as General (Under Honorable Conditions) 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.

Standards of performance and conduct , as determined by MCO P1610.7 series ( Performance Evaluation System ) , MCO P1070.12 series ( Individual Records Administration Manual (IRAM) ) , and the customs of the service , form the primary basis for determining a Marine ’ s characterization of service. The established m inimum acceptable average proficiency and conduct marking s during an enlistment 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.

T he Applicant’s official service record reflects two non-judicial punishments and one S ummary C ourt -M artial due to misconduct committed by the Applicant . This misconduct is re flect ed in the Applicant’s proficiency and conduct markings. However, the A pplicant’s contention that his last pro/con evaluation marks were unjust and unfair has merit. The Applicant received mandatory reduction in rank pro/con marks of 1.0/1.0 (unacceptable proficiency and conduct) following a Battalion Commander level NJP , which resulted in a reduction in rank . Th ese evaluation ma r k s were well below the established standard s for awarding of proficiency and conduct marks as pro scribed i n the IRAM. I t was the NDRB’s determination , however, that the grievous nature of the Applicant’s misconduct (20 days unauthorized absence compounded by falsifying documents to depart the island of Okinawa without authorization and to enter the Republic of the Philippines) warranted th e lowest possible conduct mark prescribed by the IRAM – 3.0. As such, the Applicant ’ s overall in - service conduct would have remained below 4.0, still warranting the awarding of a General (Under Honorable Conditions) characterization of service at discharge .

The NDRB determined that the Applicant’s conduct, which forms the primary basis for determining the character of his service at discharge , did reflect a significant departure from th at conduct expected of a service member as reflected in his assigned proficiency and conduct markings while in service . Therefore, t he awarded characterization of service at discharge was both proper and equitable ; 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 his service and Medical record entries, the NDRB determined that 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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