Upgrade.Vet

USMC | DRB | 2010_Marine | MD1001144

Original file (MD1001144.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20100330

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)       19981110 - 19981130     Active:

Period of Service Under Review:
Date of Current Enlistment: 19981201     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20020719      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 19 D a y ( s )
Education Level:        AFQT: 51
MOS: 0811
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA /CONF : 20020608-20020704 ( 27 days ) / 20011219-20020107 (19 days)

Lost Time (per DD 214): 20020412-20020414 ( 3 days ) ; 20020608-20020704 ( 27 days ) ; 20011219-20020116 (1 9 days)

NJP:
- 20000328 :       Article (Failure to obey an order or regulation - 2 specifications )
         Awarded: Suspended:

- 20001021 :      Article (Failure to obey a lawful order by wrongfully failing to provide support to your spouse)
         Awarded: Suspended:

- 20011101 :      Article ( Unauthorized absence from appointed place of duty - Driver’s Improvement Class)
         Article (Failure to obey an order or regulation - 3 specifications )
         Awarded: ORAL Suspended:
         Suspension vacated 20011211

- 20020604 :      Article ( Fail to obey lawful order by wrongfully locating yourself within 100 meters of your wife)
         Article (False official statement)
         Article (Break restriction)
         Awarded: ORAL Suspended:

SCM:
- 20011219 :       Art icle (U nauthorized absence from appointed place of duty: 0930-1300, 20011210)
         Sentence : (20011219-200201 07 : 2 0 days)

SPCM:
Charges were preferred for violations of Article 92 (Failure to obey an order or regulation), Article 107 (False official statement) , and Article 134 (Breaking restriction). The Applicant requested to plead guilty of all charges at an NJP per a pre-trial agreement (PTA) dated 23 May 2002. Additionally, the Applicant agreed to waive an administrative board. The command approved the Applicant’s request on 29 May 2002 and adjudicated the charges at an NJP dated 4 June 2002.

CC:

Retention Warning Counseling :

- 20020108 :       For a pattern of misconduct resulting from violations of the UCMJ and Marine Corps standards.

- 20020108 :       For disobeyed lawful order not to drive on suspended license on 20000328, failure to obey a lawful order by wrongfully failing to provide support to wife on 20001021, and disobey base Magistrate, by driving on base with suspended license on 20011101.

- 2002032 7 :       For being classified as treatment failure by the Spouse Abuse Case Review Committee (SACRC) on 20000412, reports of domestic violence on 20011127, reports of child neglect on 20020221 (as determined by the CRC committee, which substantiated child neglect injurious environment against both level III). Applicant refuse d to acknowledge this counseling.

NDRB Documentary Review Conducted (date):        20040224
NDRB Documentary Review Docket Number:   MD03-00812
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.

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 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Man ual, (MCO P1900.16F), effective
1 September 2001 until Present.

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. The Applicant contends his discharge is inequitable based on his misconduct.
2. The Applicant contends his discharge is inequitable , because all instances of misconduct were due to personal life and did not affect his performance in his job.
3 . The Applicant believes his post-service conduct is worthy of consideration.

Decision

Date: 20110525 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 NDRB complete d 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 and for o f the Uniform Code of Military Justice (UCMJ): Article (Unauthorized absence from appointed place of duty - Driver’s Improvement Class) ; Article (Failure to obey an order or regulation - 7 specifications); Article (False official statement) ; and Article (Break restriction) . Additionally, the Applicant ’ s service record included Summary Court-Martial for of the UCMJ: Article (Unauthorized absence from appointed place of duty). Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant exercised rights to consult with a qualified counsel, but waived his rights to submit a written statement for considerat ion by the separating authority and to request an administrative board hearing .

: (Decisional) ( ) . The Applicant contends his discharge is inequitable based on his misconduct. The NDRB reviews the propriety and equity of an Applicant’s discharge on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Marine Corps. A preponderance of the evidence reviewed supports the conclusion that the Appli cant committed numerous offenses and that separation from the Naval Service was appropriate . As such, r elief is denied.

: (Decisional) ( ) . The Applicant contends his discharge is inequitable , because all instances of misconduct were due to off-duty personal issues and did not affect the performance of his duties. Despite a Marine’s prior record of service, certain serious offenses, warrant separation from the Naval Service in order to maintain good order and discipline. An Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for N aval personnel, or is otherwise so meritorious that any other characterization of service wo uld be clearly inappropriate. A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. However, a n Under Other Than Honorable Conditions characterization of service at discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service. Based on the Applicant’s record of service, the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service, and the awarded characterization of service was warranted ; as such, t he NDRB determined that an upgrade would be inappropriate. Relief denied.

: (Decisional) ( ) PARTIAL . The Applicant believes his post-service conduct is worthy of consideration. The NDRB considers 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. The Applicant provided letters of reference and documentation regarding his employment, finances, education and training, health and medical records, criminal records, family and personal status, and community service. The Applicant should be aware submission of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the NDRB on a case-by-case basis. After a careful review of the Applicant ’ s official service record and post-service documentation, and taking into consideration his testimony, and the facts and circumstances unique to this case, the NDRB determined relief is warranted based on equitable grounds . In light of the testimony and evidence of record, the NDRB determined that the quality of the Applicant’s service did not meet the standard s of acceptable conduct and performance of N aval personnel to warrant an Honorable characterization of service at discharge . However, the NDRB determined that the Applicant’s service was honest and faithful , but that significant negative aspects of his conduct outweigh ed the positive aspects of his military record . T herefore, the NDRB determined that an upgrade in the discharge characterization to General (Under Honorable Conditions) was proper and warranted , but voted unanimously not to change the narrative reason for separation , which remains accurate as issued .

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, testimony, and the discharge process, the NDRB found the discharge was proper and equitable at the time of discharge. However, based on the circumstances surrounding the Applicant’s misconduct , his testimony, and his post-service achievements , the NDRB determined that mitigation was warranted. Therefore, the awarded characterization of service shall GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain . The Applicant is no longer eligible for review by the Naval Discharge Review Board and should petition the Board for Correction of Naval Records using DD Form 149 if further reviews are desired . When requesting a change, the Applicant should provide as much documentation as possible regarding the issue for petition . Their address is: Board for Correction of Naval Records, 2 Navy Annex, Washington, DC 20370-5100. Further information may be found online at http://www.donhq.navy.mil/bcnr/bcnr.htm .

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 | MD1001144

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