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USMC | DRB | 2011_Marine | MD1100496

Original file (MD1100496.rtf) Auto-classification: Denied

ex-PFC, USMCR

Current Discharge and Applicant’s Request

Application Received: 20101217

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: 19940204     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20010507      H ighest Rank:
Length of Service :

Inactive: Y ea r ( s ) M on th ( s ) 29 D a y ( s )
Active: Y ea r ( s ) M on th ( s ) 06 D a y ( s )

Education Level:        AFQT: 73
MOS: 3521
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of CONF :

NJP:     SCM:     SPCM:    CC:

Retention Warning Counseling :

- 19970405 :       For exceeding maximum weight standards – current weight is 229 and max allowable weight is 214.

- 19980912 :       For unauthorized abse nce from scheduled drill on 9, 10, 11, and 12 September 1998.

- 19981004 :       For unauthorized absence from scheduled drill on 3 and 4 October 1998.

- 19981107 :       For unauthorized absence from scheduled drill on 6 and 7 November 1998.

- 19981206 :       For unauthorized absence from scheduled drill on 5 and 6 December 1998.

- 19990110 :       For unsatisfactory participation in the Selected Marine Corps Reserves by reason of unauthorized absence from scheduled drill on 9 and 10 January 1999.

- 19990207 :       For unsatisfactory participation in the Selected Marine Corps Reserves by reason of unauthorized absence from scheduled drill on 5, 6, and 7 February 1999.

- 19990307 :       For unsatisfactory participation in the Selected Marine Corps Reserves by reason of unauthorized absence from scheduled drill on 6 and 7 March 1999.

NDRB Documentary Review Conducted (date):        20021008
NDRB Documentary Review Docket Number:   MD02-00369
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:                  Oth er Documentation:
                  Additional Statements :
         From Applicant:          From /To Representation:          From /To Congress m ember :

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 personal circumstances mitigate his failure to attend drills.
2.       Post-service.
Decision
Date : 2011 1130             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 discharg e if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of g overnment al affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service included 6105 counseling warnings but no misconduct resulting in non-judicial punishment (NJP) or court-martial. Based on the Applicant’s failure to satisfactorily participate in the Marine Corps Reserve, command administratively processed for separation. When notified of administrative separation processing, the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board.

: (Decisional) ( ) . The Applicant contends personal circumstances mitigat e his failure to attend drills. The Applicant provided credible testimony as well as documentation that , when examined along with the record , supports the Applicant’s contention. The Applicant had attended drills without incident for approximately four years before his wife disappeared, leaving him as the sole caregiver for three young children , ages one, two , and three . The Applicant’s work schedule and financial challenges, along with his responsibilities to his children , made it extremely difficult to attend drill that was 180 miles away. The Applicant promptly notified his command to make them aware of his situation and attempted on numerous occasions to work out a plan to deal with his issues and remain a satisfactory drilling Marine reservist . T he Applicant ’s leadership provided no assistance and told the Applicant t o attend drill or be in an unauthorized absence status. The Applicant investigated attending drill at u nit s closer to his home but was told there were no billets available for his MOS . T he Applicant was subsequently absent for approximately 34 drills , and his command was aware of his situation during this period. The Applicant’s wife eventually returned, and the Applicant promptly returned to his unit to make up for the time he had missed. After having made up approximately 30 of his 34 missed drills over several weeks , the Applicant was told by his staff non-commissioned officers (SNCO) that his separation package had finally been processed, and there was nothing the comman d could do to keep him in the Marine Corps despite his efforts to make up the lost time and to honor his commitment to the Marine Corps . The Applicant was subsequently separated with an Under Other Than Honorable Conditions characterization of service. The NDRB noted severe failures in leadership at the SNCO and officer levels in handling the Applicant’s situation. The Applicant had proficiency and conduct (Pro/Con) marks of 4.5/4.4 over nine occasions. He was clearly a good Marine who faced extremely difficult circumstances with three young children . The command had numerous avenues at their disposal to assist this young Marine who had no misconduct, had attended drills without incident for four years, was a good performer, and had fallen on hard times. By a vote of 5-0, the NDRB determined the Applicant’s characterization of service will change to Honorable and his narrative reason for separation will ch ange to Secretarial Authority.

: (Decisional) ( ) . The Applicant requested the NDRB consider post - service conduct as a basis to gain a more thorough understanding of performance and conduct during the period of service under review . The Applicant submitted documentation that included proof of community and church volunte er service, educational accomplishments ( two Bachelors degrees and a Masters degree ) , a clean criminal background check, employment and financial records, and birth and marriage certificates. The Applicant’s post-service conduct clearly shows his problems in the Marine Corps Reserve were a n aberration and not indicative of his overall character. As indicated in I ssue 1 , the NDRB determined by a vote of 5-0 that an upgrade to Honorable with a narrative reason change to Secretarial Authority 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 change to SECRETARIAL AUTHORITY .

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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USMC | DRB | 2011_Marine | MD1100496

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