Upgrade.Vet

USMC | DRB | 2010_Marine | MD1000950

Original file (MD1000950.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20100301

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)       19911211 - 19920224     Active:

Period of Service Under Review:
Date of Current Enlistment: 19920225     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19950303      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 09 D a y ( s )
Education Level:        AFQT: 89
MOS: 3112
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle (WITH 1 STAR) LoA (3)

Periods of CONF :

NJP:

- 19931022 :      Article 109 (Willfully destroyed the ATM machine)
         Article (Drunk and disorderly)
         Awarded: Suspended: FOR 25 DAYS

- 19940324 :      Article (UA 0730-1000, 19940305)
         Awarded: Suspended: Suspension vacated 19940810

SCM:

SPCM:

CC:

Retention Warning Counseling:

- 19940810 :      For my repeated violation of orders and directives including UA/tardiness, use of alcohol and most recently involved in a traffic accident/hit and run; drunk driving and insubordination, disrespect, communicating threats and general disorderly conduct toward military police upon apprehension.

- 19940915 :      For my repeated loss of government property, which it was my duty to maintain ; specifically my Armed Forces Identification Card ( a controlled document ) .

Administrative Corrections to the Applicant’s DD 214

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

         “ IN LIEU OF TRIAL BY COURT MARTIAL ”

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:                  Other Documentation:
                  Additional Statements:
         From Applicant:          From/To Representation:          From/To Congress member:

Pertinent Regulation/Law

A. Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 June 1989 until 17 August 1995.

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 .

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

Applicant’s Issues

1.       The Applicant contends h e was not medically qualified to serve, and his a lcohol and personal problems impaired his ability to serve .
2 .       The Applicant contends h is record of service (awards and meritorious promotion) warrants consideration for an upgrade to Honorable.
3.       The Applicant contends his p ost-service conduct warrants consideration for an upgrade to Honorable.

Decision

Date: 20 1 1 0407          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’s record of service included 6105 counseling warnings and non-judicial punishments for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Unauthorized absence , 0730-1000 on 19940305), Article 134 ( Drunk and disorderly) , and Article 109 ( Destruction of property other than military property - Automatic Teller Machine) . His record of service did not include any trials by court-martial. Documentation found in the Applicant’s service record indicates disciplinary action was pending for additional violations of the UCMJ : Articles 91 ( Insubordinate conduct toward warrant, noncommissioned, petty officer, 3 specifications) , 111 (Drunken driving), and 134 ( General article, 2 specifications). Rather than face disciplinary action, on 9 December 1994, the Applicant requested separation in lieu of trial by court-martial. On 27 January 1995, Commander, Marine Corp Bases, Japan approved his request. The NDRB did not have a copy of the Applicant’s request to confirm his acknowledg ment and complete understanding of the elements of the offense s charged , acknowledgment that he was guilty of the offense s , and acknowledgment and understanding of the negative consequences of his actions , and that characterization of service could be Under Other Than Honorable Conditions. Therefore, the Board presume s regularity of govern mental affairs for this matter . The Applicant presented no evidence to rebut that presumption. B ased on the offense s committed by the Applicant, his command administratively processed him for separation.

: (Decisional) ( ) . The Applicant contends h e was not medically qualified to serve, and his alcohol and personal problems impaired his ability to serve , therefore, suggesting his medical issues, alcohol, and personal problems mitigate h is misconduct and warrants consideration for upgrading his discharge . D ocumentation provided by the Applicant did indicate that, while in service, he was diagnosed as alcohol dependent and had completed a Level II alcohol treatment program. It further indicated that he did not appear to have benefitted from the treatment program, as he continue d to drink, and d id not intend to change his behavior. The Applicant was also diagnosed with chronic personality disorder and was recommended for additional alcohol rehabilitation and administrative separation . When reviewing a discharge, the NDRB does consider the extent to which a medical problem and other issues might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline. The NDRB also recognizes that serving in the military is challenging. Most service members, however, serve honorably and therefore earn their Honorable discharges. In fairness to those service members, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. Although it is quite evident that the Applicant suffered from alcohol dependency and a chronic personality disorder, the Board conclude d that his dependency , personality disorder , and personal problems did not lessen the severity of his m isconduct , nor were they of sufficient nature to exculpate the Applicant’s misconduct . Nothing in the record showed that the Applicant was not responsible for his actions Relief denied.

: (Decisional) ( ) . The Applicant contends h is record of service, as evidenced by his awards and meritorious promotion, warrants consideration for an upgrade to Honorable. Despite a service member’s prior record of service, certain serious offenses warrant separation from the Marine Corps to maintain proper order and discipline. Violation of Articles 91 , 111 , and 134 of the UCMJ are such offenses. Insubordinate conduct toward a warrant, noncommissioned officer, or petty officer, and drunken driving can result in an unfavorable characterization of discharge, or at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. Rather than face disciplinary action and the possibility of a punitive discharge and confinement, on 9 December 1994, the Applicant requested separation in lieu of trial by court-martial. On 27 January 1995, h is command approved his request , choosing not to pursue a punitive discharge but opt ing instead for the more lenient administrative discharge. The NDRB found the characterization of the Applicant ’ s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances. Relief denied.

: (Decisional) ( ) . The Applicant indicates that he has turned his life around and is now sober. The NDRB is authorized to consider post-service factors in the re-characterization of a discharge. However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on good conduct in civilian life subsequent to leaving the service. The documentation the Applicant submitted along with the DD Form 293 was not sufficient to evaluate his post-service character and conduct. His efforts needed to have been more encompassing. For example, he could have provided evidence of the following: verifiable continuous employment record, certification of criminal history, character witness statements, documentation of community or church service, official transcripts reflecting attendance at or completion of higher education, and evidence of financial stability. 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. Relief denied.

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 .

T he Applicant ’s eligib ility for a personal appearance hearing has expired. He may petition the Board for Correction of Naval Records, 2 Navy Annex, Washington, DC 20370-5100 for further review using DD Form 149.

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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USMC | DRB | 2010_Marine | MD1000950

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