Upgrade.Vet

USMC | DRB | 2010_Marine | MD1001317

Original file (MD1001317.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20100429

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)       20050113 - 20050705     Active:

Period of Service Under Review:
Date of Current Enlistment: 20050706     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20061216      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 11 D a y ( s )
Education Level:        AFQT: 84
MOS: 8911
Proficiency/Conduct M arks (# of occasions): ( ) / 2.4 ( )         Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle ,

Periods of UA: 20060127-20061107 ( 284 days )

Periods of CONF : 20061107-20061108, 2 days (IHCA)

NJP:

- 20050823 :      Article (UA 0200-1630, 20050818 )
         Awarded: Suspended:

- 20061117 :      Article (UA 20060127-20061107, 284 days)
         Awarded: Suspended:

SCM:     SPCM:    CC:      Retention Warning Counseling :

Administrative Corrections to the Applicant’s DD 214

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

         “ (284) 20 060127-20061106; (2) 20061107-20061108 ”

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. The Marine Corps Separation and Retirement Manual, (MCO P1900.16F, effective 1 September 2001 until Present,
Paragraph 6210, MISCONDUCT.

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 .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 86 (in excess of 30 days) .

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

Applicant’s Issues

1. Nondecisional issues: The Applicant seeks an upgrade in the characterization of his service at discharge to General (Under Honorab le Conditions) so that he may reenlist in the Army Reserve .

2. Decisional issues: The Applicant did not identify any issues of propriety or equity related to his discharge for consideration by the NDRB.

Decision

Date: 20110407           Location: Washington D.C.        Representation:

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 Applicant did not identify any decisional issues for the NDRB’s consideration; however, the NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety. The Applicant’s record of service reflects entry into the military without waiver at age 20 on a four- year contract with no extension s . He enlisted with a guarantee for the Infantry Training Program. Throughout his enlistment period, the Applicant received no 6105 retention-counseling warnings. The Applicant’s period of enlistment under review did , however , include two nonjudicial punishments for violation of the following Articles of the Uniform Code of Military Justice:

•         Article 86 (Absence without leave; specifically, absented himself from his unit without authority from 0200 to 1630 on 20050818)
•         Article 86 ( Absence without leave; specifically, absented himself from his unit without authority from 20060127 to 20061107 (284 days time lost ) .

The Applicant departed his command at an undetermined date around the Christmas Holiday annual leave period in December 2005. Based on the Applicant’s contention, he was attempting to coordinate a hardship discharge or permissive temporary additional duty for hardship matters to help care for his ill mother. The record of service reflects that , after being gone for approximately 30 days, the Applicant was determined to now be in an unauthorized absence status effective 2 7 January 2006 . The Applicant remain ed absent, without authority, from his command until he was apprehended by civilian law enforcement personnel on 07 November 2006. The Applicant’s family was notified of his unauthorized absence, in writing, on 13 February 2006. On 28 February 2006, the Applicant was formally declared a deserter from the Armed Forces; a DD Form 553 ( Deserter/Absentee Wanted by the Armed Forces ) was subsequently issue d to all Federal, State, and Local l aw e nforcement a gencies seeking his apprehension and return to military custody. On the same date, th e Applicant was administratively dropped from the unit accountability rol l s and transferred by service record to the rol l s of Headquarters Marine Corps . On 07 November 2006, civilian law enforcement agents - acting on the Deserter/Absentee warrant for his apprehension - detained the Applicant; he was returned to military custody two days later.

The Applicant was notified of the Commanding Officer’s recommendation for administrative separation on 17 November 2006. The Applicant was advised that the basis for separation was MISCONDUCT (Commission of a Serious Offense - AWOL) in accordance with paragraph 6210.6 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN). The Command further advised the Applicant that the least favorable characterization of service he could receive at discharge was an Under Other Than Honorable Conditions characterization of his service. The NDRB reviewed the Applicant’s administrative separation package; the Applicant acknowledged - in writing - that he understood that the least favorable characterization of service at discharge was Under Other Than Honorable Conditions. He was advised that he had the right to consult with qualified legal counsel; however, he chose to not exercise that right. Additionally, the Applicant elected to waive his right to request an administrative hearing board or to submit written matters to the Separation Authority for consideration in his case. On 05 December 2006, having determined that the evidence of record supported the basis for discharge and that the characterization of service, as recommended, was warranted, the Separation Authority approved the discharge action and designated the basis for separation as MISCONDUCT (Commission of a Serious Offense) pursuant to paragraph 6210.6 of the MARCORSEPMAN. On 16 December 2006, the Applicant was discharged with a n Under Other Than Honorable Conditions characterization of service and was further advised that he was not recommended for reenlistment or reentry and was assigned an RE-4 reentry code on his DD Form 2 14.

Nondecisional Issue - The Applicant seeks an upgrade in the characterization of his service at discharge to General (Under Honorable Conditions) so that he may be eligible to reenlist in the Army Reserve . There is no requirement, or law, that grants re-characterization solely on the issue of improving reenlistment opportunities; regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge. As such, this issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the armed forces and is not authorized to change a reentry code. The Applicant may petition the Board for Correction of Naval Records (BCNR) using DD Form 149. When requesting this change, the Applicant should provide as much documentation as possible regarding the reason a change is warranted. The BCNR’s address is: Board for Correction of Naval Records, 2 Navy Annex, Washington, DC 20370-5100. Further information can be found online at http://www.donhq.navy.mil/bcnr/bcnr.htm

( NDRB Board Issue s ) ( ) . The Applicant did not identify any issues of propriety or equity related to his discharge for consideration by the NDRB. However, the NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety. In accordance with paragraph 6210.6 of the MARCORSEPMAN , service members may be separated based on the commission of a serious military offense when the Commanding Officer believes the specific circumstances of the offense warrant separation and the offense would warrant a punitive discharge if adjudicated at trial by court martial for the same or closely related offense. The Applicant’s violation of Article 86 of the UCMJ - in excess of 180 days, terminated by apprehension - warrant ed punitive discharge and confinement for up to one and a half year s , if adjudicated at trial by court - martial. Based on a review of the evidence of record and circumstances unique to this case, the NDRB determined that the Applicant’s misconduct did properly satisfy the requirements established by the M ARCORSEPMAN for separation based on the commission of a serious offense as a basis for discharge. Moreover, despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Naval Service i n order to maintain good order and discipline. As such, the NDRB determined there was no impropriety because of an error of fact, law, procedure, or discretion with the discharge. Relief based on propriety is denied.

A service member’s characterization of service is founded on the recognition of his performance and conduct and is not necessarily dependent upon the narrative reason for separation. When the quality of a member’s service has met the standards of acceptable conduct and performance of duty for military personnel, it is appropriate to characterize that service under Honorable conditions. A General (Under Honorable Conditions) discharge 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. However, an Under Other Than Honorable Conditions 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 seriousness of the offenses, coupled with the previous misconduct of record, the Command recommended separation with an Under Other Than Honorable Conditions characterization of service at discharge. The Separation Authority reviewed the evidence of record and the gravity of the charges and directed the Applicant be separated for MISCONDUCT (Commission of Serious Offenses /AWOL ) and that he be separated Under Other Than Honorable Conditions , without recommendation for reentry into the armed services. Upon review of 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. The NDRB found the characterization of the Applicant ’ s discharge was equitable and was consistent with the characterization of discharge given others in similar circumstances. 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 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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USMC | DRB | 2010_Marine | MD1001317

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