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USMC | DRB | 2011_Marine | MD1100836

Original file (MD1100836.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20110214

Characterization of Service Received:

Narrative Reason for Discharge:

Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to: HARDSHIP

Summary of Service
Prior Service:
Inactive:         NONE              Active:

Period of Service Under Review:
Date of Current Enlistment: 19970128     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20000830      H ighest Rank:

Length of Service:
         Active : Year(s) Month(s) 13 D ay(s)
         Inactive :        Year(s) Month(s) 17 D ay(s)
Education Level:        AFQT: 62
MOS: 0311
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:

- 19980503 :      For my unexcused absence from regularly schedules drill s (IDT), for the period 19980404-19980405

- 19981004 :      For my unexcused absence from regularly schedules drills (IDT), for the periods 19980606 (2 drills) and 19981002-19981004 (5 drills)

NDRB Documentary Review Conducted (date):        20100127
NDRB Documentary Review Docket Number:   MD09-01527
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 wants his Narrative Reason for Separation changed to Hardship.
2 .       The Applicant contends his discharge Under Other Than Honorable Conditions was too harsh for his miscondu ct of record.
3.       The Applicant avers that his ability to serve was impaired by personal problems , which contributed to and mitigated his misconduct of record.
4.       The Applicant contends his post-service conduct warrants consideration for upgrading his discharge.

Decision

Date: 20 1 2 0423          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 included 6105 counseling warnings . It did not include any non-judicial punishments or trials by court-martial for violation s of the U niform Code of Military Justice . However, because the Applicant’s drill attendance was unsatisfactory, his command administratively processed him for separation. When notified of a dministrative separation processing via mail , the Applicant did not return the Acknowledgment of Rights. His failure to return the Acknowledgment of Rights constituted a waiver of his rights to consult with a qualified counsel, submit a written statement, and request an administrative board.

: (Decisional) ( ) . The Applicant wants his Narrative Reason for Separation changed to Hardship. A Marine may request discharge based on hardship if the hardship is not temporary, the Marine has made every effort to remedy the situation, separation will eliminate or materially alleviate the condition, and there is no other means of alleviation reasonably available. The Applicant did not provide sufficient information to the NDRB to demonstrate he properly requested discharge on the basis of hardship or that he met the criteria for discharge based on hardship. However, even if the Applicant could show he met the criteria for discharge based on hardship, it would amount to neither a justification nor a defense for the Applicant’s own failure to participate. Therefore, a fter reviewing the Applicant’s testimony, issues, supporting documents , and the evidence of record, the NDRB discerned no impropriety or inequity and determined the Applicant’s separation for his unsatisfactory participation was appropriate. Relief denied.

: (Decisional) ( ) . The Applicant contends his discharge Under Other Than Honorable Conditions was too harsh for his misconduct of record. The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service. Based upon available records, nothing indicates that the Applicant’s discharge for having 33 unexcused drills was in any way inconsistent with the standards of discipline in the United States Marine Corps. However, after consider ing the facts and circumstances unique to this case, particularly those surrounding the reason s for the missed drills and the fact that the Applicant worked with his chain of command and kept them informed , the NDRB determined that, based on equitable grounds, relief concerning the assigned Character of Service is warranted. Relief granted.

: (Decisional) ( ) . The Applicant avers that his ability to serve was impaired by personal problems , which contributed to and mitigated his misconduct of record. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case as well as the Applicant’s testimony, the NDRB discerned no impropriety in the discharge action but did discern that relief concerning t he characterization of the Applicant’s service is warranted based on equitable grounds. By unanimous vote, the NDRB voted to upgrade the Applicant’s discharge; by majority vote, the narrative reason for the discharge, Failure to Participate, shall remain as issued. Relief granted.

Issue 4 : (Decisional) ( ) . The Applicant contends his post-service conduct warrants consideration for upgrading his discharge to General (Under Honorable Conditons). The NDRB considers 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. Documentation provided by the Applicant included a personal statement, character references, and a copy of a college transcript. He also provided testimony concerning his employment history, community service, family, criminal history, and college completion. After considering the facts and circumstances unique to this case , including the Applicant’s record of service as evidenced by his average proficiency and conduct markings, the NDRB concluded that his post-service conduct demonstrate d his in-service misconduct was an aberration . The Board voted unanimously to change the Characte r of Service but not to change the Narrative Reason for Separation. 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 the discharge was proper and equitable at the time of discharge. However, based on equitable considerations , the awarded characterization of service shall GENERAL (UNDER HONORABLE CONDITIONS) and the N arrative R eason for S eparation shall remain .

Since the Applicant has had a Personal Appearance Hearing with the NDRB, he is not eligible for additional reviews or hearings from the NDRB. The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for any further reviews or issues. Their website is http://www.donhq.navy.mil/bcnr/bcnr.htm.

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

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USMC | DRB | 2011_Marine | MD1100836

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