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USMC | DRB | 2011_Marine | MD1100302
Original file (MD1100302.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20101117
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:  
Period of Service Under Review:
 Date of Current Enlistment: 19940722     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19980810      H ighest Rank:
Length of Service:
          Inactive:        Year(s) Month(s) 09 D ay(s)
         Active:  Year(s) Month(s) 11 D ay(s)
 Education Level:        AFQT: 90         MOS: 5700
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:
Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:     SCM:     SPCM:    CC:      Retention Warning Counseling:

NDRB Documentary Review Conducted (date):        20050316
NDRB Documentary Review Docket Number:   MD05-00264
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.
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:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

Pertinent Regulation/Law
A. Paragraph 6213 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 August 1995 until
31 August 2001.

B. Marine Corps Reserve Administrative Management Manual, MCO P1001R.1, Chapter 3, Reserve Participation and Administrative Procedures, paragraph 300.

C. Table 6-1 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 August 1995, Guide for Characterization of Service.

 D . 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.       The Applicant contends t he Marine Corps’ failure to pay him during the first seven months of drill, and the indifference to the problem at MWSS 474, created financial hardship and other strains that threatened to derail his college.
 2.       Efforts to create an approach that would allow him to fulfill the military service obligation and co m plete his c ollege education were rejected at MWSS 474 , which w as contrary to the precepts of the Special Enlistment Program.
3.       MWSS 474 appears to have been in error when it stated that he had 27 unexcused absences between 1 2 July 1996 and 14 December 1997.
4.       The Applicant asserts that he a ttended no further drills after the 17 May 1997 drill weekend . He contends this result was not brought about by any conduct considered “willful” on his part.
5.       The quality of service supports upgrading the discharge to General (Under Honorable Conditions) .
6.       Post-service factors support upgrading the discharge to G eneral (Under Honorable Conditions).

Decision

Date: 20 1 1 1024            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 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 did not include any 6105 counseling warnings, non-judicial punishments, or trials by court-martial for violation of the Uniform Code of Military Justice (UCMJ) . Documentation found in the Applicant’s service record indicates he exceeded the minimum amount of unexcused drills. Based on the se unexcused absences, command administratively processed for separation. When notified of a dministrative separation processing , the Applicant failed to respond to the Acknowledgment of Rights, which constitutes a waiver of his rights to consult with a qualified counsel, submit a written statement, and request an administrative board .

: (Decisional) ( ) . The Applicant contends t he Marine Corps’ failure to pay him during the first seven months of drill, and the indifference to the problem at MWSS 474, created financial hardship and other strains that threatened to derail his college . The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his claim. Based on documentation provided by the Appli cant and documentation found in his service record, it does appear that the Applicant was not paid during the first seven months of drills. However, after further investigation , the NDRB determined that he had been overpaid while on a ctive duty , and the Marine Corps appropriately withheld his pay through manual adjustments over the course of several months until the overpayment was earned and accounted for through drill participation . This adjustment, however, was never communicated to the Applicant. T he Board concluded that the Applicant’s c laim that the Marine Corps ’ fail ure to pay him created a financial hardship was not substantiated and d id not warrant an upgrade in the characterization of his service. However, based on the documentation and testimony regarding the command’s indifference to matters regarding the Applicant’s pay, which would eventually play a role in his decision to stop attending drill, the Board determined relief was warranted. Relief granted .

: (Decisional) ( ) . The Applicant contends his efforts to create an approach that would allow him to fulfill his military service obligation and complete his c ollege education were rejected at MWSS 474 , which was contrary to the precepts of the Special Enlistment Program. Specifically, he indicates that due to the Marine Corps’ failure to pay him , he had difficulty funding the 129 - mile trip to the reserve center during his first seven months of drill . In an effort to remedy the problem, he presented the command with a request to transfer to another military organization that provided a b etter opportunity for him to meet his service obligation and complete his college education. According to the Applicant, his request was denied. The Board presumed regularity and concluded that the disapproval of the Applicant’s request to transfer to another

unit did not violat e any regulation s , and it was not contrary to the precepts of the Special Enlistment Program agreement. The Applicant did not provide any evidence to support his claim that the disapproval of his request contradicted the precepts of the Special Enlistment Program, and h is statement and testimony were not sufficient for the Board to grant relief base d on this issue . Relief denied.

: (Decisional) ( ) . The Applicant contends that M WSS 474 was in error when it stated that he had 27 unexcused absences between 12 July 1996 and 14 December 1997. According to regulations, participation is unsatisfactory when members acquire at least nine unexcused absences from scheduled training within a 12-month period. The Applicant testified that the last drill he attended was in May or June 1997. He stated that he did not attend any more drills after that. Excluding any missed drills between 12 July 1996 and 30 June 1997 that the Applicant contends he either attended or was excused from attending, t he Board determined that the Applicant still had at least nine unexcused absences between 1 July 1997 and 14 December 1997 . The Board determined that the Applicant still had an obligation to attend drill until properly discharged. The amount of drills missed between July 1997 and December 1997 still met the mi nimum required for his drill status to be considered unsatisfactory. The Board concluded that this issue did not warrant upgrading the Applicant’s characterization of service. Relief denied.

Issue 4: (Decisional) ( ) . The Applicant asserts that he a ttended no further drills after the 17 May 1997 drill weekend . He contends this result was not brought about by any conduct considered “willful” on his part. On July 22, 1994, the Applicant signed a statement acknowledging his understanding that satisfactory participation consisted of 48 scheduled drills and no less than 14 days of active duty tr a ining during each year of his six-year contract. Based on the Applicant’s testimony and documentary evidence, the Board determined that he made a conscious decision to stop drilling without approval , and concluded that his misconduct was willful. However, based on documentation and testimony regarding circumstances surrounding the Applicant’s decision to stop attending drill, specifically, the command’s indifference to the Applicant’s repeated requests for assistance, the Board determined relief w as warranted. Relief granted.

Issue 5 : (Decisional) ( ) . The Applicant contends t he quality of his service supports upgrading the discharge to General (Under Honorable Conditions). Despite a service member’s prior record of service, certain serious offenses warrant separation from the Marine Corps to maintain proper order and discipline. The Applicant accumulated more than the minimum number of unexcused drills allowed during a 12- month period , which rendered his drill participation unsatisfactory. However, rather than conduct NJP proceedings before administratively discharging him from the Marine Corps, his command opted to discharge him without any type of punishment . R elief denied.

 Issue 6: (Decisional) ( ) . The Applicant contends p ost-service factors support upgrading his discharge to General (Under Honorable Conditions). The NDRB is authorized to consider post-service factors in the re-characterization of a discharge. However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on good conduct or achievements in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question. Outstanding post-service conduct, to the extent that 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. Along with his DD Form 293, the Applicant submitted sufficient documentary evidence as well as plausible and compelling testimony that enabled the Board to assess his post-service conduct and achievements. Based on the Applicant’s post-service conduct , in conjunction with his in-service performance and conduct prior to the incident that led to his discharge, the Board concluded that the Applicant’s misconduct was an aberration and not indicative of his overall character. Relief granted.

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 is not eligible for additional reviews or hearings by the NDRB. He may petition the Board for Correction of Naval Records, 2 Navy Annex, Washington, DC 20370-5100, for further review using DD Form 149.


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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