Upgrade.Vet

USMC | DRB | 2011_Marine | MD1100921

Original file (MD1100921.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20110224

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: 19970322     Age at Enlistment:
Period of E nlistment : Years
Date of Discharge: 20010209      H ighest Rank:
Length of Service:
         Inactive:        Y ea r ( s ) M on th ( s ) 26 D a y ( s )
         Active: Y ea r ( s ) M on th ( s ) 22 D a y ( s )
Education Level:        AFQT: 49
MOS: 0351
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:     SCM:     SPCM:    CC:

Retention Warning Counseling :

- UNDATED :        For unexcused absence on 19990206-19990207 (4 drills). Applicant not available for signature.

- 20021115 :       For unexcused absence on 19980109-19980111, 19981002-19981004, and 19990206-20000206 (62 drills). Applicant not available for signature.

NDRB Documentary Review Conducted (date):        20091217
NDRB Documentary Review Docket Number:   MD09-01355
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 :

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

Applicant’s Issues

1.        The Applicant contends his separation and the resulting characterization of service are inequit able and improper , because his absences from drill should have bee n excused for medical reasons.

2 .       The Applicant contends that his p ost-service efforts are worthy of consideration .

Decision

Date : 2012 0530             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 documents 6105 retention- counseling warnings and no misconduct resulting in non-judicial punishment or court-martial. Based on the Applicant’s failure to participate satisfactorily in the Marine Corps Reserve , command administratively processed for separation . When notified of administrative separation processing, the Applicant did not return the acknowledgment of rights , constituting waiver of rights to consult with a qualified counsel, submit a written statement, and request an administrative board.

: (Decisional) ( ) . The Applicant contends his s eparation and characterization of service are inequitable and improper , because his absences from drill should have been excused for medical reasons. The NDRB carefully considered the record of service , documentation , and evidence provided by the Applicant , coupled with his sworn testimony. While examining medical documentation and administrative correspondence between the Applicant and his command, i t became evident to the NDRB that the Applicant’s reserve command, active - duty Inspector Instructor staff, and supporting Navy medical staff did not coordinate matters appropriately among themselves. This resulted in the Applicant having clear direction not to attend drill due to being in either a T emporary N ot P hysically Q ualified (TNPQ) status or a N ot P hysically Q uali fied (NPQ) status from his command’s medical staff , without being tracked properly by the command’s administrative section. Concurrently, the Applicant’s command was pursuing administrative action against him due to improperly maintaining medical documentation , which was provided by the Applicant and his civilian doctor. This oversight or lack of coordination between elements within the command led the command to continue to believe the Applicant was missing drill s without authority. Based on the overwhelming evidence available to the NDRB, it was determined the Applicant did not miss drill periods without authority and should not have been separated due to unsatisfactory participation. Therefore, the NDRB determined the characterization of service will change to Honorable , and the narrative reason for separation will change to Secretarial Authority. Relief granted.

: (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 provided documentation that showed he has maintained steady employment with the same Chicago area police department as an officer and detective. The Applicant showed he has advanc ed within his police department and has been decorated for bravery in the line of duty as well as for meritorious execution of his duties. The Applicant showed he is married with children and has a stable family life. He has completed a Bachelor’s degree as well as other training associated with law enforcement. The NDRB found the Applicant’s post-service conduct to be commendable and worthy of consideration. While the NDRB found the Applicant committed no misconduct, as detailed in I ssue 1 , it was determined his post-service conduct further documented that his in - service conduct and performance were honorable and warranted a change in characterization of service . When viewed in concert with items discussed in I ssue 1 , the NDRB determined the characterization of service will change to Honorable, and the narrative reason for separation will change to Secretarial Authority. 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 determined that Therefore, the awarded characterization of service shall and the narrative reason for separation shall . As the former member has exercised his rights to a documentary review and personal appearance hearing with the NDRB, any future issues identified for consideration must now be addressed with the Board for Correction of Naval Records. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm .

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.

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 | MD1100921

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