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USMC | DRB | 2011_Marine | MD1100290
Original file (MD1100290.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110811
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)       20040617 - 20050607     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20050608     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20090904      H ighest Rank:
Length of Service : Y ea rs M on ths 27 D a ys
Education Level:        AFQT: 35
MOS: 0311
Proficiency/Conduct M arks (# of occasions): /          Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle SS ICM (2) SSDR (2) GWOTSM NDSM NUC COA LOA

Periods of UA/CONF:      UA 20061120 - 20070118 (60 days)         CONF 20070126 - 20070218 (24 days)
                           UA 20070321 - 20070323 (2 days)
NJP: 2

- 20060706 :      Article 86 (Absence without leave, failed to report at the appointed time, 2 specifications )
         Article 92 (Failure to obey order or regulation, went to Mexico without authority)
         Awarded: RIR (to E-1) FOP EPD Suspended:

- 20070328 :      Article 86 (Absence without leave , 20070321 - 20070323, 2 days )
         Awarded : FOP RESTR EPD Susp ended:

SCM: 1

- 20070126 :       Art icle 86 (Absence without leave , 20061120 - 20070118 , terminated by his surrender , 60 days )
         Sentence : FOP CONF 30 days ( 20070126 - 20070218, 24 days ) Suspended: FOP (suspend 6 months)

SPCM: NONE       CC: NONE

Retention Warning Counseling : 2

- 20060625 :       For VUCMJ Art 86 (2), being absent from your appointed place of duty on two separate occasions and you disobeyed an order, in that you did not follow the regimental order on leave and liberty and went to Mexico knowing that it was against the policy.

- 20070326 :       For loss of 10520 O rdnance C ard . This sort of behavior shows a lack of responsibility and maturity on your part. This will not be accepted nor tolerated.



Administrative Corrections to the Applicant’s DD 214

The NDRB note d an administrative error on the original DD Form 214:

          “ GENERAL (UNDER HONORABLE CONDITIONS) ”
        
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. Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present, Paragraph 1005, DISCHARGE FOR EXPIRATION OF ENLISTMENT OR FULFILLMENT OF SERVICE OBLIGATION .
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 seeks a discharge upgrade to obtain veteran benefits .
2.       Applicant contends his you th and immaturity mitigate his misconduct.

Decision

Date: 20 1 2 02 09            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 identified one decisional issue for the Board’s consideration. The Applicant’s record of service included two 6105 counseling retention warning s and two nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, 3 specifications : twice failed to report to duty at the time prescribed on, 20 Mar 2006 and 7 May 2006; and absented himself from his unit 21-23 Mar 2007, 2 days ) and Article 92 (Failure to obey an order or regulation, went to Mexico without proper authority) . The record also reflected one summary court-martial for violation of the UCMJ: Article 86 (Absence without leave, 20 Nov 2006 -18 Jan 2007, 60 days , terminated by his surrender on 19 Jan 2007 ) . The NDRB did not have the Applicant’s cumulative proficiency and conduct mark averages to determine if the Applicant met the minimum eligibility requirement for an Honorable discharge. The Applicant completed his enlistment with the Marine Corps on 4 Sep 2009 with a General (Under Honorable Conditions) characterization of service .
: (Nondecisional) The Applicant seeks a discharge upgrade to obtain veteran 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. Additionally, t he NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.
: (Decisional) ( ) . The Applicant contends his youth and immaturity mitigate his misconduct. When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under H onorable conditions. Although a review of the Applicant’s record reveals no history of his cumulative enlistment Proficiency (P ro ) and Conduct (C on ) marks , the record does reflect a pattern of inconsistent performance and conduct as evidenced by two 6105 retention warnings, two NJPs, and a s ummary c ourt -m artial (for commission of a serious offense , UA in excess of 30 days) . Per the Marine Corps Separation and Retirement Manual, a Marine may be awarded a General (Under Honorable Conditions) discharge if a member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance outweigh positive aspects of the member’s military record. Additionally, u pon separation, if a member’s average P roficiency marks are below 3 .0 and /or average C onduct marks are below 4.0, the Marine may be awarded a General (Under Honorable Conditions) discharge. Without the Applicant’s four- year enlistment P ro /C on averages , the Board determined that the significant and repeated misconduct indicated within the record clearly warranted a General (Under Honorable Conditions) discharge. Accordingly, the Board found that the Applicant’s discharge was proper , equitable , and in accordance with the applicable orders and directives in effect at the time of his separation. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service and record entries, 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 for additional information.


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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