Upgrade.Vet

USMC | DRB | 2010_Marine | MD1001927

Original file (MD1001927.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20100727

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)       20070420 - 20070701     Active:

Period of Service Under Review:
Date of Current Enlistment: 20070702     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20090805      H ighest Rank:
Length of Service : Y ea rs M on th 04 D a ys
Education Level:        AFQT: 75
MOS: 5954
Proficiency/Conduct M arks (# of occasions): (NFIR) / (NFIR)    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle SS NDSM LOA

Periods of UA /CONF : NONE

NJP:

- 20090415 :      Article 92 (Failure to obey order or regulation, disobeyed a Military Protection Oder )
         Article 134 (General article , wrongfully made contact with the person who had a civilian restraining order against him )
         Awarded: RIR FOP RESTR EPD Suspended:

SCM: NONE                 S PCM:

C C :

- NFIR : Offense: Violated an injunction protection for domestic violence which occurred on 19990404
         Sentence : JAIL 60 days FINE $625.00

CIVILIAN ARREST : 1

- NFIR: Sexual battery of a victim over the age of twelve
Violation of injunction protection for domestic violence which occurred on 20090127 and 20090214

Retention Warning Counseling : 1

- 20090415 :       For violation of a Military Protection Order and restraining order placed by civilian authorities

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 120.

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

Applicant’s Issues

1. The Applicant contends that all legal actions have been resolved in his civilian legal matters.

Decision

Date: 20 1 1 1013 Location: Washington D.C . R epresentation : NONE

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 one 6105 counseling warning, one non-judicial punishment for violations of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation, disobeyed a Military Protection O r der) and Article 134 (General A rticle, wrongfully made contact with the person who had a civilian restraining order against him) , one civilian conviction for v iolat ion of an injunction protection for domestic violence that occurred on 19990404 , and pending civilian charges for sexual battery of a victim over the age of twelve and violation of injunction protection for domestic violence that occurred on 20090127 and 20090214. Based on the offens es committed by the Applicant, his command administratively processed him for separation. When notified of a dministrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board .

: (Decisional) ( ) . The Applicant contends that all legal actions have been resolved in his civilian legal matters. The Applicant states his civilian charges resulted in an acquittal and a misdemeanor. The Applicant provided no documentation or evidence to support his contention or to overcome the NDRB’s presumption of regularity in the conduct of governmental affairs. The record revealed no impropriety or inequity in the Applicant’s administrative separation proceedings. The record shows the Applicant’s misconduct warranted separation and could have resulted in confinement and a punitive discharge if adjudicated at special court-martial. No change is warranted.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, and d ischarge p rocess, the Board found 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, Automatic Upgrades, 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

Similar Decisions

NAVY | DRB | 2012_Navy | ND1200067

Original file (ND1200067.rtf) Auto-classification: Denied

The Applicant contends his record of service warrants an upgrade. The civilian conviction provided the preponderance of the evidence that he committed a serious offense, he elected an ASB, the ASB determined he committed the offenses and recommended a General discharge, and the Separation Authority reviewed the findings and ordered the Applicant to be discharged. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance...
NAVY | DRB | 2012_Navy | ND1200633

Original file (ND1200633.rtf) Auto-classification: Denied

Types of Documents Submitted/reviewedRelated 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/ToCongress member: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD...
USMC | DRB | 2010_Marine | MD1001937

Original file (MD1001937.rtf) Auto-classification: Denied

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 Applicant’s record of...
USMC | DRB | 2007_Marine | MD0700721

Original file (MD0700721.rtf) Auto-classification: Denied

After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct which precipitated the discharge.In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. Applicant...
NAVY | DRB | 2007_Navy | ND0700226

Original file (ND0700226.rtf) Auto-classification: Denied

Date Applicant Responded to Notification:20030812 Rights Elected at Notification: Consult with Counsel Obtain Copies of Documents Submit Statement(s) (date) Administrative Board GCMCA review Separation Authority (date): COMMANDING OFFICER, CENTER OF CRYPTLOGY, CORRY STATION, PENSACOLA (20030909)Reason for discharge directed: - Characterization directed: Date Applicant Discharged: 20031027 Types of Documents Submitted by Applicant and Considered By BoardRelated to Military Service: Service...
NAVY | DRB | 2012_Navy | ND1200734

Original file (ND1200734.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant contends his record of service outweighs his misconduct, and he was forced into accepting a General discharge.2. 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 Board found Therefore, the awarded characterization of service shall and the narrative...
NAVY | DRB | 2000_Navy | ND00-00869

Original file (ND00-00869.rtf) Auto-classification: Denied

Charge I: violation of the UCMJ, Article 128 (2 specifications): Specification 1: Unlawful touch on 20Jan98. The applicant did not provide any of these documents. You may view DoD Directive 1332.28 and other Decisional Documents by going online at " afls14.jag.af.mil ".The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:
NAVY | DRB | 2008_Navy | ND0800380

Original file (ND0800380.rtf) Auto-classification: Denied

Court day scheduled 20031103CC:Retention Warnings:NONE Types of Documents SubmittedRelated to Military Service: DD 214: Service and/or Medical Record: Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Substance Abuse: Criminal Records: Family/Personal Status: Community Service: References: Additional Statements From Applicant: From Representation: From Member of Congress: Other Documentation (Describe) DEPARTMENT OF THE NAVYNAVAL...
NAVY | DRB | 2013_Navy | ND1300719

Original file (ND1300719.rtf) Auto-classification: Denied

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 Board found 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. ” Additional Reviews : After a document review has been conducted, former members are...
USMC | DRB | 2010_Marine | MD1001149

Original file (MD1001149.rtf) Auto-classification: Denied

Applicant’s Request:Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive:USMCR (DEP)20021003 - 20030526Active: Period of Service Under Review: Date of Current Enlistment: 20030527Age at Enlistment: Period of Enlistment: Years MonthsDate of Discharge:20070724Highest Rank:Length of Service: Year(s)Month(s)28 Day(s)Education Level: AFQT:45MOS: 0612Proficiency/Conduct Marks (# of occasions):()/()Fitness Reports: Awards and Decorations (per DD...

Search Decisions

Decision Text

USMC | DRB | 2010_Marine | MD1001927

Similar Decisions