Upgrade.Vet

USMC | DRB | 2010_Marine | MD1001038

Original file (MD1001038.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20100312

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)       20040212 - 20040613     Active:

Period of Service Under Review:
Date of Current Enlistment: 20040614     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20081013      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 00 D a y ( s )
Education Level:        AFQT: 77
MOS: 3043
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle (3) w/ one bronze star COC LOA

Periods of UA / CONF :

NJP:

- 20051010:      Article , Failure to obey order or regulation ( 4 specifications, d etails NFIR)
         Article , (Details NFIR)
         Awarded: NFIR    Suspended: NFIR

- 20061117 :      Article , Unauthorized absence (Failed to report to the S quadron Duty Officer for liberty risk muster)
         Article , Failure to obey order or regulation (Failed to obey a direct order given by the Commanding Officer to be at his appointed place of duty for liberty risk muster)
         Awarded: Suspended:

- 20070216 :      Article 80 , Attempts (Attempted to commit adultery with the spouse of another Marine)
         Awarded: Suspended:

- 20071121 :      Article , Drunken driving (Operating his POV while the alcohol concentration in his blood or breath equaled or exceeded the applicable limit )
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling:

- 20051017 :      For non-judicial punishment for violations of Articles 86 and 92 (four specifications) of the UCMJ.

- 20061117 :      For non-judicial punishment for violations of Articles 86 and 92 of the UCMJ.

Administrative Corrections to the Applicant’s DD 214

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

         “ GENERAL (UNDER HONORABLE CONDITIONS) ”

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. 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.       Wants to use the GI Bill money to attend college.
2 .        The Applicant contends the characterization of his discharge warrants an upgrade to Honorable since his command did not consider any of his misconduct egregious enough to issue him a punitive discharge or one with an Under Other Than Honorable characterization. To further support his contention, he adds he was even granted an extension to deploy with his command to Iraq , therefore, suggesting his record of service warrants consideration .

Decision

Date: 20 1 1 0331          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 four non-judicial punishments for violations of the Uniform Code of Military Justice (UCMJ) . Although the Applicant served for the duration of his contract, his average conduct marks did not meet the minimum requirement for his service to be characterized as Honorable. The minimum acceptable average proficiency and conduct markings during an enlistment are 3.0 and 4.0 , respectively. The Applicant’s failure to achieve the standard for conduct is evidence of significant negative aspects, outweighing all but the most meritorious military records. As a result, his service was characterized as General (Under Honorable Conditions).

: (Non - decisional) The Applicant wants his discharge upgraded so he can receive the GI Bill to attend college. 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 on the issue of making a former service member eligible for v eterans' educational benefits. The NDRB has no authority to upgrade a discharge for the sole purpose of receiving educational benefits. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.

: (Decisional) ( ) . The Applicant contends the characterization of his discharge warrants an upgrade to Honorable since his command did not consider any of his misconduct egregious enough to issue him a punitive discharge or one with an Under Other Than Honorable characterization. To further support his contention, he adds he was even granted an extension to deploy with his command to Iraq. Per the Marine Corps Separation and Retirement Manual, an Honorable characterization upon expiration of active service is appropriate when the quality of the Marine’s service has met the standards of accepted conduct and performance of duty for military personnel. Therefore, characterization will be H onorable for Marines with average proficiency marks of 3.0 or higher and average conduct marks of 4.0 or higher. Although t he Applicant complete d his service obligation , his record of service included evidence of s ignificant negative aspects, and his average c onduct marks did not meet the requirement to issue him an Honorable characterization. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, including the Applicant’s service in Iraq, the NDRB discerned no impropriety or inequity in the discharge action. Relief denied.

S ummary: 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, by a majority vote of 4 to 1, 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 for additional information.

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 | MD1001038

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