Upgrade.Vet

USMC | DRB | 2011_Marine | MD1100137

Original file (MD1100137.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20101020

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:         NONE               Active:         19980826 - 20011211
                                    USMC     20011212 - 20070904

Period of Service Under Review:
Date of Current Enlistment: 20070905     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080602      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 29 D a y ( s )
Education Level:        AFQT: 46
MOS: 0311 /0369/8411
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports: / Reviewed

Awards and Decorations ( per DD 214):      Rifle (5) , Pistol (2) , w/Combat Device for Valor, , (2) , , , HSM , , (4) , CertCom (5) , CoA , MM , LoA (2)

Periods of U nauthorized Absence (UA) or Confinement :

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:

         Block 18 REMA R KS should read : “ CONTINUOUS HONORABLE ACTIVE SERVICE from 98 0 826 -0 7 0 9 0 4 ”
         Block 25 SEPARATION AUTHORITY should read : “MARCORSEPMAN 6419 [IN LIEU OF TR I AL BY COURT MARTIAL ] ”

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

Nonde cisional issues: The Applicant requests restoration of pay grade and rank .

Decisional issues : The Applicant seeks an upgrade to the characterization of service received at discharge to Honorable, contending that he was subject to an administrative discharge without just cause.

Decision

Date: 20 1 20313 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 related to the propriety of his discharge for the NDRB’s consideration; he provided no additional documentation to rebut the NDRB’s presumption of regularity in governmental affairs . 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 propriety.

The Applicant’s enlistment record reflects entry into military service with out waiver to enlistment standards. He enlisted under a guarantee d Infantry Option contract for 4 years of active duty military service and received training as a Basic Infantryman . The Applicant was serving on his third enlistment with the Marine Corps , having completed honorab ly tw o previous 4-year enlistment contract s with extensions, which ended on 04 September 2007. The Applicant executed an immediate reenlistment obligating himself for another four-year period of obligation while on recruiting duty. T he Applicant’s service record documents that he is a combat veteran, having served in Operation IRAQI FREEDOM. The Applicant completed a deployment as an Infantry Squad Leader in the Al-Anbar Province of Iraq while conducting combat operations in support of Operation IRAQI FREEDOM. The military service record further documents that he was awarded the Combat Action Ribbon and a Navy and Marine Corps Achievement Medal with Valor Distinguishing Device for his personal actions while engaged in direct combat operations against enemy forces in Ar-Ramadi, Iraq.

The Applicant’s service record reflects that, while assigned to recruiting duty, he was discharged involuntarily in lieu of facing a trial by court - martial in accordance with paragraph 6419 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) - separation in lieu of trial by court - martial . The Applicant was alleged to have violated Article 92 ( F ailure to obey lawful order or regulation) of the Uniform Code of Military Justice (UCMJ) . A preliminary i nquiry was conducted into the allegation and the Applicant was advised of his rights under Article 32 of the UCMJ; on 10 April 2008, having been advised of his rights - in writing - the Applicant provided a written statement regarding his alleged misconduct. Based on the facts available at the time, t he Applicant’ s command chose to refer the alleged violation of A rticle 92 to a trial by Sp ecial C ourt -M artial . In order to avoid the punitive effects of a trial by court - martial, the Applicant requested he be separated administratively.

The Applicant’s military record contains a complete copy of the separation proceedings. In order to warrant separation in lieu of trial by court - martial, the Applicant must request separation - in writing - for the good of the service to escape charges that have been preferred against the applicant for referr al to a trial by Special Court-Martial or above. The Applicant submitted a written request for a separation in lieu of trial by court - martial to the S eparation A uthority on 02 May 2008 . The request was endorsed by the chain of command, recommending approval with an Under Other Than Honorable Conditions characterization of service; the Separation Authority approved the request on 30 May 2008 , directing separation under other than honorable conditions with an RE-4 reentry code (not recommended for reenlistment) .

(Nondecisional Issues) The Applicant requests restoration of pay grade and rank. The NDRB is not authorized to restore a rank/pay grade as requested; however, the Applicant may petition the Board for Correction of Naval Records using DD Form 149 regarding this issue. When requesting a change, the Applicant should provide as much documentation as possible to support the request for change. The address is: Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490. Further information is also available online at http://www.donhq.navy.mil/bcnr/bcnr.htm .

(Decisional Issues) ( ) PARTIAL . The Applicant seeks an upgrade to the characterization of service received at discharge to Honorable, contending that he was subject to an administrative discharge without just cause.

(Propriety) Formal charges w e re preferred against the Applicant for an alleged violat i on of Article 92 of the UCMJ on 24 April 2008. In order to warrant separation in lieu of trial by court - martial, the Applicant must have requested separation - in writing - for the good of the service to escape charges that had been preferred against the A pplicant and referred to trial by a Special Court-Martial. The Applicant submitted his signed and witnessed request for separation in lieu of trial on 02 May 2008 ; after review by the Staff Judge Advocate, the Separation Authority approved it on 30 May 2008 . The request for separation contained 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 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 throughout the process. The request for separation satisfied all the elements established by the 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 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 propriety and equity. Despite a servicemember’s prior record of service , certain serious offenses, even though isolated, may warrant separation from the Naval Service in order to maintain good order and discipline. Violation of Article 92 can be such an offense, depending on the circumstances involved. In accordance with the UCMJ, a punitive discharge (Bad Conduct Discharge/Dishonorable Discharge) and confinement are warranted if adjudicated and awarded as part of a sentence by a S pecial or G eneral C ourt- M artial. In the Applicant’s case, the command opted to pursue the punitive discharge; facing the possibility of a punitive discharge and record of a felony offense, the Applicant requested administrative separation in lieu of trial. The Applicant violated a basic order governing the conduct of canvassing recruiters (Depot Order P1100.4B) ; he engaged in a non-professional relationship , with a female , who was a possibl e prospective recruit applicant (paragraph 4) on diverse occasions over a period of approximately seven months. Violation of this order on recruiting duty usually results in referr al of charges to trial by court- martial due to the potential to bring discredit upon the service in the local communities, which directly affects the mission of the recruiting command. Each canvassing recruiter is counseled on this specific issue and is made aware of the likely outcome of this misconduct and signs a policy guidance memorandum stating his complete awareness and understanding. The Applicant violated this order; however, on detailed review of the facts and circumstances involved in this specific and unique case, the NDRB determined that the characterization of service was overly harsh given the specific details of the relationship, coupled with the Applicant’s overall service, particularly his meritorious service in combat.

The characterization of service at discharge is recognition of a Marine’s performance and conduct throughout the current period of enlistment and is not necessarily dependent upon the narrative reason for separation. Prior to the current enlistment period under review, the Applicant had successfully completed two active duty enlistment periods - honorably; however, each period of enlistment is an independent obligation and characterization is determined for that specific period of time. As such, 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. A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. 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 members of the Naval S ervice.

The Applicant’s service record is a testament to long and faithful service to the Corps; however, his misconduct of record is that - misconduct - and, given the Applicant’s rank, billet, and leadership role, could not be condoned. Conversely, the NDRB also determined that the unique nature of the misconduct had some extenuating and mitigating circumstances . After a careful review of the Applicant ’ s documentation and official service record, coupled with the facts and circumstances unique to this case, the NDRB determined that partial relief is warranted based on equitable grounds. A preponderance of the evidence reviewed supports the conclusion that the Applicant committed a serious offense, that separation from the Naval Service was appropriate, but that a General (Under Honorable Conditions) discharge is appropriate and was warranted. As such, p artial r elief is awarded. Full relief to Honorable was not granted due to misconduct on the part of a S taff Noncommissioned O fficer.

S ummary : 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 , however, the narrative reason for separation shall remain IN LIEU OF TRIAL BY COURT MARTIAL. 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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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

USMC | DRB | 2010_Marine | MD1001594

Original file (MD1001594.rtf) Auto-classification: Denied

Decisional issues: The Applicant contends that the Under Other Than Honorable characterization was inequitable given the documented service in his previous enlistment, his wartime service, and the awards and recognition received while on recruiting duty prior to his misconduct of record. The Applicant contends that the Under Other Than Honorable Conditions characterization was inequitable given the documented service in his previous enlistment, his wartime service, and the awards and...
USMC | DRB | 2012_Marine | MD1200224

Original file (MD1200224.rtf) Auto-classification: Denied

Additionally, the Applicant’s service record documents a period of unauthorized absence from his unit from 29 October 2009 to 27 January 2010 - a violation of Article 86 (Absent without leave - in excess of 30 days) of the UCMJ.The NDRB reviewed the Applicant’s separation proceedings; the Applicant was discharged in accordance with paragraph 6419 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN)(separation in lieu of trial by court-martial) and was afforded all his...
USMC | DRB | 2012_Marine | MD1200281

Original file (MD1200281.rtf) Auto-classification: Denied

The military service record further documents that he was awarded a Navy and Marine Corps Achievement Medal for his combat support efforts while deployed in a designated combat zone.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. Summary : After a thorough review of the available evidence, to include the Applicant’s record entries and...
USMC | DRB | 2011_Marine | MD1100294

Original file (MD1100294.rtf) Auto-classification: Denied

Applicant’s Request:Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive:USMCR (DEP)20040830 - 20040912Active: Period of Service Under Review: Date of Current Enlistment: 20040913Age at Enlistment: Period of Enlistment: Years MonthsDate of Discharge:20051213Highest Rank:Length of Service: Year(s)Month(s)1 Day(s)Education Level: AFQT:34MOS: 0300Proficiency/Conduct Marks (# of occasions):()/1.9()Fitness Reports: Awards and Decorations (per DD...
USMC | DRB | 2011_Marine | MD1100119

Original file (MD1100119.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: Pertinent Regulation/Law A. Paragraph 6419, SEPARATION IN...
USMC | DRB | 2009_Marine | MD0902487

Original file (MD0902487.rtf) Auto-classification: Denied

The Applicant identified one decisional issue to the Board and provided documentation,which included a pre- and post-service medical diagnosis and treatment confirmation in support of his claim of pre-service schizophrenia and post-service bi-polar manic depression.The Board completed a thorough review of the circumstances that led to his discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety. ” Additional Reviews : After a document...
USMC | DRB | 2011_Marine | MD1101242

Original file (MD1101242.rtf) Auto-classification: Denied

Decisional issues:The Applicant contends that the characterization of his service at discharge was inequitable in relation to the charges and evidence used against him in the discharge process; at the time of his request for separation in lieu of trial by court martial, the Applicant requested a General (Under Honorable Conditions) characterization. (2) At the time of his request for separation in lieu of trial by court-martial, the Applicant requested a General (Under Honorable Conditions)...
USMC | DRB | 2013_Marine | MD1301142

Original file (MD1301142.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 | MD1001592

Original file (MD1001592.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: Pertinent Regulation/Law A. Paragraph 6419, SEPARATION IN...
USMC | DRB | 2010_Marine | MD1002116

Original file (MD1002116.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...

Search Decisions

Decision Text

USMC | DRB | 2011_Marine | MD1100137

Similar Decisions