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USMC | DRB | 2011_Marine | MD1100628
Original file (MD1100628.rtf) Auto-classification: Denied
ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110105
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)       19961023 - 19970824     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 19970825     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20001103      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 10 D a y ( s )
Education Level:        AFQT: 33
MOS: 6283
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle , , MM

Periods of CONF :

NJP:

- 19991202 :      Article (Unauthorized Absence , 2 specifications )
         Specification 1: Missing from appointed place of duty at 0700 19991102
         Specification 2: UA from 0700 19991110 - 1300 19991120, 10 days
         Article (Failed to obey a lawful order or regulation by traveling beyond out of bounds limits while on liberty status )
         Awarded: Suspended: Vacated 20000313

SCM:

- 20000621 :      Article ( Absence without leave - Absented himself from his unit, without authority, on 20000214 and did remain so absent until 20000513 ( 90 days) - absence terminated by surrender to military authority)
         Sentence:

SPCM:             CC:               Retention Warning Counseling:

NDRB Documentary Review Conducted (date):        20070830
NDRB Documentary Review Docket Number:   MD07-00121
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. A. Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 January 1997 until 31 August 2001.

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 .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 86 (in excess of 30 days) .

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

Applicant’s Issues

 1.       The Applicant wants his discharge upgraded so he can reenlist in the military.
2 .       The Applicant requests that his discharge be upgraded because it was based on an isolated incident caused by family problems.
3 .       The Applicant contends his prior record of service warrants consideration for upgrading his discharge.

Decision

Date: 20120 330             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’s record of service did include non-judicial punishment for o f the Uniform Code of Military Justice (UCMJ) , specifically : Article 86 ( Unauthorized a bsence, 2 specifications) and Article 92 (Failure to obey order or regulation, 1 specification). Additionally, the Applicant’s service record documents summary court-martial for of the UCMJ: Article 86 ( Unauthorized ab sence, 1 specification) . Based on the offenses committed by the Applicant, the command administratively processed for separation. When notified of administrative separation processing , the Applicant waived rights to consult with a qualified counsel, to submit a written statement, or to request an administrative hearing board be held .

 : (Non - decisional) The Applicant wants his discharge upgraded so he can reenlist in the military. There is no requirement, or law, that grants re-characterization solely on the issue of facilitating r eenlistment opportunities. Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge. Moreover, t he NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces and is not authorized to change an RE code. Only the Board for Correction of Naval Records can make changes to RE codes. Neither a less than fully honorable discharge , nor an unfavorable Reentry (RE) code is, in itself, a bar to reenlistment . A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter . As such, this issue does not serve to provide a foundation upon wh ich the NDRB can grant relief.

Issues 2-3 : (Decisional Issues ) ( ) . The Applicant requests that his discharge be upgraded , because it was based on an isolated incident caused by family problems. He further contends that his record of service warrants consideration for upgrading his discharge. Despite a service member’s prior record of service, certain serious offenses warrant separation from the Marine Corps to maintain proper order and discipline regardless of performance, grade, or time in service . Violation of Article 86, specifically for a period of more than 30 days, is one such offense. A period of unauthorized absence lasting more than 30 days usually results in an unfavorable characterization of service at discharge or, at a maximum, a punitive discharge, and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. Before surrendering to his command, t he Applicant was in an Unauthorized Absence status for 90 days ; on the 31st day of his absence, he was dropped from the unit roles and was declared a deserter and a warrant was issued for his apprehension and return to military custody . Upon his return, the command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge process . However, after further review and consider ation of all the facts and circumstance s unique to this case , coupled with the testimony of the Applicant, and the mitigating and extenuating circumstances surrounding his absence and issues within the organization at the time, the NDRB determined that some form of relief was warranted. Given the facts of the record, the information provided by the Applicant, and the Applicant’s service, the NDRB determined that the Applicant’s conduct, which forms the primary basis for determining the character of his service, was honest and faithful, but that a significant negative aspect of the member’s conduct did outweigh the overall positive aspects of his record. As such, the NDRB determined relief was warranted. The NDRB voted 4-1 to upgrade his service to General (Under Honorable Conditions), but, by a vote of 5-0, that no change to the narrative reason for separation is warranted. Relief warranted.

Summary: After a thorough review of the available evidence, to include the Applicant’s testimony, summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall , but the narrative reason for separation shall remain . As the Applicant has exercised his right to both a documentary review and a personal hearing, he is no longer eligible for additional review by the NDRB. He may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490, for further review using a standard 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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