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USMC | DRB | 2010_Marine | MD1002116
Original file (MD1002116.rtf) Auto-classification: Denied
ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20100824
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)       20030307 - 20031013     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20031014     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20050208      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 23 D a y ( s )
Education Level:        AFQT: 61
MOS: 6821
Proficiency/Conduct M arks (# of occasions): /   Fitness R eports:

Awards and Decorations ( per DD 214):      RIFLE EX

Period of U nauthorized Absence : 20040911 - 20041112 ( 6 3 day s ) . Period of Confinement : NFIR

NJP:     SCM:    

SPCM: Charges of violating Article 86 [in that the Applicant, while on Active Duty, did on 11 September 2004 , without authority, absent himself from his unit and did remain so absent until 12 November 2004 ] were preferred against the Applicant. The Convening Authority withdrew the charges upon approving the Applicant ’ s request for administrative separation in lieu of trial by court martial.

CC:

Retention Warning Counseling :

- 20040225 :       For your diagnosis with a physical condition not a disability (Metatarsalgia) and any resultant or aggravated condition which interferes with the effective performance of your duties.

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 :        

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

Applicant’s Issues

 Decisional issue : The Applicant contends his characterization of service at discharge was inequitable; personal circumstances, including his inability to adjust to the military lifestyle and his youth and immaturity , led to his poor judgment and are mitigation for his misconduct of record. Additionally, t he Applicant contends his post-service conduct warrants consideration for an upgrade to a n Honorable ch aracterization of his service.

Decision

Date: 20 1 1 1208           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 Applicant identified one decisional issue for the NDRB’s consideration. Additionally, the NDRB c ompleted a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent stan dards of equity and propriety.

The Applicant’s enlistment record reflects entry into military service with a waiver to enlistment standards for pre-service illegal drug use ( marijuana ) . He enlisted under an Aviation Operations Option c ontract with an agreement for 4 years of active duty military service , receiving training as a Meteorological and Oceanographic S pecialist. The Applicant’s record of service documents one retention-counseling warning and no nonjudicial or judicial proceeding s for any violation s of the Uniform Code of Military Justice (UCMJ). However, the service record does document the fact that the Applicant absented himself from his unit, without authority, and remained absent for a period of 63 days (20040911 - 20041112); the Applicant terminated t his absence by surrendering himself to military authority . The NDRB presumed regularity in the conduct of governmental affairs in this case due to the absence of the Applicant ’ s administrative discharge package in his off icial service record. However, i n order to warrant the narrative reason for separation that the Applicant received - S eparation in L ieu of T rial by C ourt -M artial (SILT) - the Applicant must have request ed , in writing, that a S pecial or G eneral C ourt -M artial convening authority administratively separate d him in order to avoid the punitive effects of a trial. This type of request has specific elements, which are required to be satisfied , before the request is accepted, in order to protect the legal rights of the Applicant and ensure his understanding of what his req uest may bring.

(Decisional Issue s ) ( ) . The Applicant contends his characterization of service at discharge was inequitable; personal circumstances, including his inability to adjust to the military lifestyle and his youth and immaturity , led to his poor judgment and are mitigation for his misconduct of record.

(Propriety) T he Applicant requested an administrative separation for the good of the service in order to avoid trial by court - martial; he was afforded the opportunity to consult with , and be represented by , an appropriately credentialed legal defense counsel. The request for separation contain s certain basic requirements - which must be satisfied - before receiving approval by the Separation Authority. In the request, the Applicant must clearly affirm that his rights have been explained to him - to include his right to consult with qualified counsel . Furthermore, the Applicant must admit his guilt to the charge (s) preferred against him and certif y that he ha s 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 respondent must further acknowledge that if discharged with an OTH, it might deprive him of virtually all veterans benefits. The request for separation must satisf y all the se elements, as established by the Marine Corps Separation and Retirement Manual (MARCORSEPMAN), be fore being accepted by the trial counsel and , ultimately, the C onvening A uthority. Once a SILT request meets these requirements, the command may accept the Applicant’s request and withdraw the punitive charges that were preferred for trial . The NDRB determined that the Applicant was discharged 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 recognizes that many of our service members are young at the time they enlist for service, however, most manage to serve their enlistment s honorably. While s ome members may be less mature than others, the NDRB does not view a member’s youth or immaturity to be a mitigating factor or a sufficient reason for misconduct, especially deliberate misconduct. Moreover, despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Naval Service to maintain good order and discipline . Violation of Article 86 of the UCMJ, in excess of 30 days, is a serious offense, warranting administrative separation or punitive punishment by trial by court-martial , regardless of grade or time in service.

The Applicant contends personal circumstances led to poor judgment and mitigate his misconduct of record. There is no evidence in the record, and the Applicant provided no evidence or documentation, to suggest his personal issues were of such severity as to prevent him from adhering to Marine Corps rules and regulations or justifying an absence of 63 days . The Applicant’s misconduct was extremely detrimental to good order and discipline to his unit . The Applicant was fortunate, given the circumstances and nature of his misconduct, that his command accepted his request for administrative separation and did not pursue a punitive discharge. Relief not warranted .

The Applicant contends his post-service conduct warrants consideration for upgrade. The NDRB considers post-service conduct and accomplishment 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. Besides the Applicant’s statement on the DD Form 293, he provided four character reference letters for the Board ’ s consideration . 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. The NDRB determined the Applicant did not provide sufficient post-service documentary evidence to overcome the misconduct of record and form a basis of relief.

C haracterization of service at discharge is recognition of a Marine’s performance and conduct throughout a period of enlistment and is not necessarily dependent upon the narrative reason for separation. When the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under Honorable conditions. However, an Under Other Than Honorable Conditions characterization of service 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 mem bers of the Naval S ervice. Given the facts of the record , and the information provided by the Applicant, the NDRB determined that the Applicant’s conduct - which forms the primary basis for determining the characterization service - reflected one or more acts or omissions that did constitute a significant departure from the conduct expected of members of the Naval Service. The NDRB further determined that the narrative reason for separation and the resulting characterization of service at discharge was proper, was equitable, was warranted, and was and remains consistent with the characterization of discharge given others in similar circumstances. As such, the NDRB determined that the Applicant’s characterization of service at discharge was appropriate. Accordingly, relief , as requested, is denied .

Summary: After a thorough review of the available evidence, to include the Applicant’s submitted documentation, his summary of service, record entries, and discharge process, the NDRB 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 his discharge. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews and Post-Service Conduct .

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 .


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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