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USMC | DRB | 2010_Marine | MD1001756
Original file (MD1001756.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20100706
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)       19990812 - 19991205     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 19991206     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20020822      H ighest Rank:
Length of Service : Y ea rs M on ths 17 D a ys
Education Level:        AFQT: 57
MOS: 6042
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):     

Period of CONF :

NJP:

- 20010318 :      Article (Unauthorized absence at or about 0730, 20010301)
         Article 91 (Insubordinate conduct on or about 20010131)
         Awarded: BW Suspended: BW RIR

- 20020509 :      Article (Failed to obey order or regulation, to stop working night shift and begin day shift)
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling:

- 20010215 : For unauthorized absence 0731-0847, 20010121 you failed to report to your place of duty to wit: Squadron Duty Clerk.

- 20010318 :      For unauthorized absence, insubordinate conduct, and failure to obey orders.

NDRB Documentary Review Conducted (date):        20050302
NDRB Documentary Review Docket Number:   MD05-00637
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 Manual, (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.       Applicant wants discharge upgraded to improve chances for reenlist ment in the military.
 2.       Applicant wants to receive veterans ’ benefits, including the GI Bill.
 3 .       Applicant contends p ost-service conduct and achievements warrant consideration for upgrading discharge to General.
4.       Applicant contends d ischarge was inequitable , because she was originally recommended to receive a General (Under Honorable Conditions) d ischarge , but it was later changed to Under Other Than Honorable C onditions .

Decision

 Date: 20 1 1 0 81 6            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 a bsence) , Article 91 ( Insubordinate conduct toward a warrant officer, noncommissioned officer, or petty officer) , and Article 92 ( Failure to obey order or regulation). Her record of service did not include any trials by court-martial for violations of the UCMJ. Based on the offenses committed by the Applicant, command administratively processed for separation . When notified of a dministrative separation processing , the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board.

: (Non - decisional) Applicant wants her discharge upgraded to improve chances for reenlistment in the military. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. Neither a less than fully honorable discharge nor an unfavorable reentry (RE) code is, in itself, a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. 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 an RE code. Only the Board for Correction of Naval Records can make changes to RE codes.

: (Non-decisional) Applicant wants to receive veterans ’ benefits, including the GI Bill. 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 re-characterization 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.

: (Decisional) ( ) . Applicant contends that her post-service conduct and achievements warrant consideration for upgrading her discharge to Honorable . 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 or achievements in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question. Along with her DD Form 293, the Applicant submitted evidence of h er post-service conduct and achievements, which included character reference letter s , employment documentation, report of criminal history, evidence reflecting completion of higher education, and evidence of financial stability . Although h er accomplishments are commendable, the Board concluded that neither h er documentation nor h er testimony regarding h er post-service activities contained sufficient information to effectively evaluate h er post-service accomplishments and conduct to determine if they demonstrate h er in-service misconduct was an aberration and not indicative of h er overall character. Relief denied.



Issue 4: (Decisional) ( ) PARTIAL . Applicant contends her d ischarge was inequitable , because she was originally recommended to receive a General (Under Honorable Conditions) discharge, but it was later changed to Under Other Than Honorable C onditions. C ommanders at various levels within the chain of command may make recommendations on how a member’s service should be characterized upon discharge, but acceptance and approval of those recommendations lies with the separation authority . Therefore, the Applicant ’ s contention of inequity based on a commander’s recommendation is without merit. However, b ased on facts and circumstances unique to this case ( particularly family hardships that were not considered by the Applicant’s command and the circumstance s surrounding each violation of the UCMJ ) , the NDRB determined t he OTH characterization service was inequitable and more severe than that of others discharged under similar circumstances . Partial relief granted. Full relief to Honorable was not granted due to the repeated misconduct.

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 . The Applicant is not eligible for additional reviews or hearings by the NDRB. She 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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