Upgrade.Vet

USMC | DRB | 2011_Marine | MD1100852

Original file (MD1100852.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20110216

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)       19950712 - 19951023     Active:

Period of Service Under Review:
Date of Current Enlistment: 19951024     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19981211      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 18 D a y ( s )
Education Level:        AFQT: 87
MOS: 0151
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP: NFIR         SCM:     SPCM:    CC:

Retention Warning Counseling :

- 19970127 :       For financial irresponsibility, specifically, improper handling of my personal finances which resulted in several phone calls being received from my creditors; loss of government property, specifically, the loss of a government pager assigned to me; and unsatisfactory progress, specifically, failure to progress in my MOS skill training.

- 19971017 :       For poor judgment which resulted in an official charge sheet being submitted for the following violations: 1) Disobeying a lawful order given by a medical officer, to wit: to schedule an appointment and go to physical therapy. 2) Failure to obey a lawful order given by your SNCO, to wit: to clean your temporary room in the barracks , and not to go to Houston, TX while in a convalescent leave status.

- 19971217 :       For substandard performance; specifically, receiving an unsatisfactory rating on the Commanding General’s Uniform/JOB Inspection. Your lack of preparedness is unbecoming of a Marine . You have been advised that your performance does not meet acceptable Marine Corps standards.

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 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 August 1995 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 IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications .

C . 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 contends his discharge was inequitable , because it was too harsh based on the misconduct of record , and he continues to suffer from its adverse effects .
2 .       Applicant contends that his post-service achievements warrant consideration for a discharge upgrade.

Decision

Date: 20 1 2 0 507          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. T he Board complete d a thorough review of the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included 6105 counseling retention warnings . Although not found with in the records , the Applicant’s written statement to the NDRB alludes to a commanding officer non-judicial punishment ( NJP ) during 1997. The record also contains a Page 12 service record book (SRB) entry, dated 5 August 1998, which explains the Applicant was given the opportunity to consult with a lawyer due to a pending NJP for violation of the Uniform Code of Military Justice (UCMJ) Article 112a ( W rongful use, possession, etc of a controlled substance), and he subsequently chose to refuse NJP , in writing, and demand trial by court martial. T he Applicant ’s medical records also indicated he admitted to pre-service marijuana use (in 1995) during a Medical Board exam ination on 10 April 1998 ; however, his enlistment accession documents contained no evidence of self-admission to illegal drug use nor did the Applicant have an enlistment waiver for illegal drug use prior to entering the Marine Corps . Although there are no documents within the record from the administrative separation in lieu of trial (SILT) process, the available documentation suggests that the Applicant refused a pending NJP for violation of UCMJ Article 112a, was subsequently referred for trial by S pecial C ourt- M artial, and then requested and was granted a separation in lieu of trial. In all cases, violation of UCMJ Article 112a requires mandatory processing per the Marine Corps Separation and Retirement Manual. The NDRB did not have the Applicant’s SILT documenta tion t o determine the specific circumstances surrounding the charges file d against him or which of the offenses he pled guilty to when requesting his separation in lieu of trial. The Applicant was separated from the Marine Corps on 11 Dec 1998 with an Under Other Than Honorable Conditions discharge due to Separation i n Lieu of Trial by Court-Martial.

Issue 1: (Decisional) ( ) . The Applicant contends his discharge was inequitable , because it was too harsh based on the misconduct of record , and he continues to suffer from its adverse effects . The Board reviews the propriety and equity of each Applicant’s discharge individually. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service. Although the records are incomplete, the Applicant requested discharge for the good of the service to escape trial by court-martial. In a SILT request, a service member must acknowledge that their rights were thoroughly explained, they admit guilt to one or more of the charges preferred against them, they certify their complete understanding of the negative consequences of their actions, and acknowledge that characterization of service could be under other than honorable conditions. The evidence of record does not demonstrate the Applicant was not responsible for his conduct or he should not be held accountable for his actions. Further, the Applicant’s testimony and documentary evidence did not overcome the presumption of regularity in this case.

The characterization of service is a description of the total service provided during the member’s enlistment. A General (Under Honorable Conditions) discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. However, an Under Other Than Honorable Conditions discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service. The Applicant’s service included three 6105 retention

warnings for financial irresponsibility, loss of government property, failure to progress in military occupational specialty skill training, poor judgment, disobeying a lawful order (x2), unauthorized absence, and substandard performance, and a pending NJP for wrongful use or possession of a controlled substance. Violation of a lawful order and wrongful use/possession of a controlled substance each constitute the commission of a serious offense and are punishable by a B ad C onduct D ischarge and up to 2 years of imprisonment if adjudicated at trial by court-martial. The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of conduct expected of all Marines, regardless of his grade or length of service, and falls short of what is required for an upgrade in the characterization of service. Accordingly, the NDRB determined this issue to be without merit and did not provide a basis for which relief could be granted. Relief denied.

Issue 2 : (Decisional) ( ) . The Applicant contends that his post-service achievements warrant consideration for a discharge upgrade. The NDRB considers post-service conduct in order to determine if the misconduct committed during active duty was indicative of the Applicant ’ s character or an aberration. However, there is no law or regulation that provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. The Applicant provided a personal statement, birth certificates, and a bachelor’s degree as evidence of post-service accomplishments. Although his efforts to improve his life are noteworthy, he failed to provide adequate documentation and evidence on his behalf to support a thorough post-service conduct review. He could have provided documentation as specified in the Post-Service Conduct paragraph in the Addendum, however, c ompletion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis. Without any additional post-service documentary evidence, the Board determined the awarded characterization of service shall remain Under Other Than Honorable Conditions. 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 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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USMC | DRB | 2011_Marine | MD1100852

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