Upgrade.Vet

USMC | DRB | 2010_Marine | MD1001867

Original file (MD1001867.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20100723

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)       19961213 - 19970121     Active:          19970122 - 20010121
USMCR ( IRR )      20010122 - 20020630

Period of Service Under Review:
Date of Current Mobilization : 20020701 Age at Mobilization :
Period of Mobilization: 20020702 - 20060210
Date of Discharge: 20060210      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 10 D a y ( s )
Education Level:        AFQT: 48
MOS: 0151
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      , , , AFRM (w/”M” device), , , GWOTSM,
Periods of UA / CONF :

NJP:     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:

         Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “ MARINE CORPS GOOD CONDUCT MEDAL (2) , NAVY AND MARINE CORPS ACHIEVEMENT MEDAL, ARMED FORCES RESERVE MEDAL W/ "M" DEVICE, NATIONAL DEFENSE SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON, GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL, GLOBAL WAR ON TERRORISM SERVICE MEDAL, MERITORIOUS UNIT COMMENDATION, NAVY UNIT COMMENDATION, CERTIFICATE OF APPRECIATION (2) , CERTIFICATE OF COMMENDATION (INDIVIDUAL AWARD) (2) ”

         T ype of S eparation, should read: “ DISCHARGED ”

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 . Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL , 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 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

Decisional issues : The Applicant seeks an upgrade in the characterization of his service at discharge, contending that : (1) H e was wrongfully separated from active duty due to a misunderstanding; (2) that he was advised by military counsel to pay back all monies assumed owed and to accept an administrative separation vice risking trial by court - martial; (3) the discharge actions were inequitable in that others who were able to fight the same charges at court - martial were found not guilty, restored in delayed ranks, and were repaid all monies that were recouped.

Decision

Date: 20 1 1 1104 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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. 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 both equity and propriet y.

The Applicant’s enlistment record reflects entry into military service at age 18. He enlisted under an Open Contract agreement for 4 years of active duty military service and received training as a Correspondence Clerk . The Applicant successfully completed his term of enlistment and was discharged Honorably and transferred to the Marine Corps Individual Ready Reserve (IRR) . The Applicant completed his two-year obligation with the IRR and was recalled to be mobilized in support of Operation ENDURING FREEDOM on a one-year mobilization order from his home of record ( involuntary Presidential Selective Reserve Call-Up ) . The Applicant completed 3 years of back-to-back mobilization orders and was in his seventh month of a fourth year of mobilization , when he was discharged for Misconduct.

O n 17 August 2005, the command preferred charges of violating Articles 107 (False o fficial s tatement), 121 (Larceny), and 132 (Fraud a gainst the Government of the United States ) in regards to allegations of improper receipt of Bachelors Allowance for Housing (BAH) . The charges were investigated via an Article 32 investigation and were referred for trial by General Court - Martial on 14 October 2005. On 05 January 2006, with the advice of military counsel, the Applicant submitted a request for administrative separation in lieu of trial by court - martial to the General Court - Martial Convening Authority. The request was approved on 27 Jan 2006 , and the Applicant was discharged Under Other Than Honorable Conditions with an RE-4 reentry code (not recommended for reen listment) on 10 February 2006.

(Decisional issues ) ( ) . The Applicant seeks an upgrade in the characterization of his service at discharge, contending that: (1) He was wrongfully separated from active duty due to a misunderstanding; (2) that he was advised by military counsel to pay back all monies assumed owed and to accept an administrative separation vice risking trial by court-martial; (3) the discharge actions were inequitable in that others who were able to fight the same charges at court-martial were found not guilty, restored in delayed ranks, and were repaid all monies that were recouped. In reviewing discharges, the NDRB presumes regularity in the conduct of Government al affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.

Propriety - The Applicant requested administrative separation for the good of the service in order to avoid trial by court - martial; he consulted with, and was represented by, an appropriately credentialed legal defense counsel (civilian and military counsel initially, military counsel only during the S eparation in Lieu of Trial (SILT) process) . A request for separation in lieu of trial contain s certain basic requirements - which must be satisfied - before receiving approval by the Separation Authority. In the request, the Applicant clearly affirmed that his rights were explained to him , thoroughly - to include his right to consult with

qualified counsel, which he did. Furthermore, the Applicant admitted his guilt to the charges preferred against him and further certified that he had a complete understanding of the negative consequences of his actions, the narrative reason for his separation, and the likely characterization of service upon separation - Under Other Than Honorable Conditions. The request for separation satisfied all the elements established by the Marine Corps Separation and Retirement Manual ( MARCORSEPMAN ) ; as such, the command accepted the Applicant’s request. The Applicant was separated properly from the N aval S ervice in accordance with chapter 6419 of the MARCORSEPMAN. Accordingly, relief based on propriety is not warranted.

Equity - The NDRB reviewed the facts of the case, the m obilization orders, and the applicable MARADMIN references regarding BAH in the case of mobilized reservists. The Applicant was mobilized from his home of record; he was processed back into the service at the mobilization processing center at Camp Lejeune, NC. Upon mobilization, the processing center prop erly assigned BAH based on the A pplicant’s home of record locality . They did not require the Applicant to provide a copy of his current lease/mortgage ; the mobilization directives at the time did not require it . Approximately three years later, BAH procedures for mobilized reservist were revised and new requirements established. In accordance with th e new BAH procedures , t he Applicant’s command requested that he provide a copy of his lease - which he did. Moreover, the command required the Applicant to provide a copy of his previous leases in order to document justification for the previous years of BAH that were previously approved under the initial policy guidance by the mobilization processing center. The Applicant was unable to comply with his command’s requirement, as he was not able to locate copies of his old leases due to having relocated his home of record multiple times during the intervening period. Unable to locate old leases, the Applicant improperly backdated his current lease to satisfy the command ’ s requirements .

In an effort to defend himself, the Applicant retained both military and civilian counsel (at his own cost). Based on the military counsel recommendation, the Applicant accepted a SILT and reimbursed the government for the BAH that he had received in order to avoid the potential long-term and damaging effects of a General Court - Martial conviction. The NDRB determined the Applicant’s contention that he was separated wrongfully was incorrect. In accordance with the MARADMINs, the command could request copies of previous lease agreements, though the MARADMIN clearly did not require them to do so. The resulting discharge action was procedurally correct; however, the NDRB determined that the premise of the discharge action was inequitable in its nature, was unwarranted, and should not have occurred. The MARADMIN clearly stated that the new procedures were not required to be applied retroactively. The Applicant was not fraudulent receiving BAH; the authorization for BAH was established by the mobilization processing unit at the time he was mobilized in accordance with the directives that were in effect. Requiring the Applicant to produce historical documentation of rental leases for previous address dating back three years was not required and was not necessary. The NDRB determined that t he command placed an unnecessary burden upon the Applicant that forced the Applicant’s actions, resulting in the eventual discharge action. Additional circumstance s that were of p articular of interest to the NDRB w ere his volunteerism to return to active duty as a mobilized reservist for four consecutive one-year tours of duty, the credible and voluntary combat service of the Applicant ( 20021204-20030507) , and his awarded proficiency and conduct mark average of 4.5/4.4 thr oughout the mobilization periods .

The NDRB determined that the discharge action, though technically proper as executed , was inequitable; therefore, r elief based on in equity i s warranted. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned an inequity in the discharge action , determined that relief, as requested by the Applicant, was appropriate, and is warranted . By a vote of 5-0, t he NDRB determined that the characterization of service at discharge sh all be changed to Honorable conditions to accurately reflect the proficiency and conduct markings the Applicant received. Additionally, i n cases where no other reason for separation , as set forth in the MARCORSEPMAN is appropriate, but where separation of a member is considered to be in the best interest of the service, the Secretary of the Navy has the authority to direct the separation of any member prior to the expiration of their term of service. Since the Applicant was discharged and t here is no other narrative reason for separation that now accurately describes the reason the Applicant was separated, the NDRB determined that the reason for the Applicant’s discharge shall be changed to SECRETARIAL AUTHORITY.

Summary : After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, the discharge process, and the evidence provided by the Applicant, the NDRB determined that the discharge was p roper , but inequitable . Therefore, the awarded characterization of service shall HONORABLE and the narrative reason for separation shall change to SECRETARIAL AUTHORITY.

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 | MD1001867

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