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USMC | DRB | 2011_Marine | MD1101169
Original file (MD1101169.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110408
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to: ENTRY LEVEL SEPAR A TION or GENERAL (UNDER HONORABLE                     CONDITIONS)
         Narrative Reason change to:

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       20040603 - 20041206     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20041207     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20050607      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 00 D a y ( s )
Education Level:        AFQT: 87
MOS: 0300
Proficiency/Conduct M arks (# of occasions): ( ) / 2.1 ( )         Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA/ CONF : UA 20050309 - 20050504 (56 days)

NJP:

- 20050509 :       Article (Absence without leave , 20050309 to 2005 0504, 56 days )
         Awarded : (60 days) Susp ended: (suspend 6 months)

SCM:     SPCM:    C C:      Retention Warning Counseling :

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.       Applicant contends his youth and immaturity led to the misconduct for which he was separated.
2.       Applicant contends his discharge was inequitable based on the misconduct of record.
3.       Applicant contends his discharge was improper due to lack of counsel and misleading advice received from his command.
4.       Applicant contends his post-service achievements warrant consideration for a discharge upgrade.

Decision

 Date: 20 1 2 06 07            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 identif ied four decisional issues for the Board ’s consideration . 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 sta ndards of equity and propriety. The Applicant’s record of service did reflect for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave, 56 days, 1330 on 9 March to 1327 on 4 May 2005, from the School of Infantry, Camp Lejeune , NC, terminated by the Applicant’s surrender ) . Based on the serious offense committed by the Applicant during initial M ilitary O ccupational S kill training , his command administratively processed him for separation from the Marine Corps . When notified of a dministrative separation processing using the procedure on 12 May 2005, the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative separation board . On 24 May 2005, the Separation Authority directed that the Applicant be separated from the Marine Corps with an Under Other Than Honorable Conditions discharge due to Misconduct (Commission of a Serious Offense). The Applicant was discharged on 7 June 2005.

Issues 1-2 : (Decisional) ( ) . The Applicant contends his discharge was inequitable based on the misconduct of record , and y outh and immaturity that led to the misconduct for which he was separated. The Applicant’s service record s indicate he violated UCMJ Article 86 by absenting himself from his appointed place of duty and remained so for 56 days until his surrender to military authority. Violation of UCMJ Article 86 in excess of 30 days is considered a “ serious offense ” by the Manual for Courts-Martial and punishable by up to one year of confinement and a B ad C onduct or D ishonorable D ischarge if awarded at trial by courts-martial. The Applicant’s command , however, did not refer him to trial by court-martial. Instead, they opted to administratively discharge him from the Marine Corps , thereby preventing him from receiving a possible felony conviction and punitive discharge at trial by court-martial. On 12 May 2005, the Applicant was advised of his rights pending administrative separation (to see k qualified counsel, request an administrative separation board, and submit a written statement) , and he elected to waive those rights. While he may feel youth and immaturity w ere the underlying cause of his misconduct at the time (at age 23) , the record clearly reflects his misconduct was willful and demonstrated he was unfit for further service. The NDRB determined that the Applicant ’ s youth or age was not a mitigating factor in his misconduct .

Typically, separation s initiated while a member is within the first 180 days of continuous active duty will be described as Uncharacterized ( E ntry L evel S eparation ) except when the characterization of service as Under Other Tha n Honorable Conditions is more appropriate or Honorable is clearly warranted. The Applicant ’s misconduct was of such severity that it rate d an Under Other Than Honorable Conditions characterization , and t herefore, an Uncharacterized discharge wa s considered in appropriate. Per the Marine Corps Separation and Retirement Manual, when a Marine’s service has been honest and faithful, it is appropriate to characterize that service under H onorable conditions. A General (Under Honorable Conditions) discharge is warranted when a Marine’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance outweighs positive aspects of the member’s military record. An U nder O ther T han H onorable C onditions

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 conduct, which forms the primary basis for determining the character of service, reflects the Applicant ’s 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 a discharge upgrade to General (Under Honorable Conditions) or Uncharacterized . Accordingly, the Board determined the Applicant’s discharge was proper, equitable , and in accordance with the applicable orders and directives in effect at the time of his separation. Relief denied.

: (Decisional) ( ) . The Applicant contends his discharge was improper due to lack of counsel and misleading advice received from his command. T he Board conducted a detailed review of the Applicant’s records to determine whether his discharge met the pertinent standards for propriety and equity. The records indicate that o n 12 May 2005, the Applicant was advised of his rights (to seek qualified counsel, request an administrative separation board, and submit a written statement) regarding his pending administrative separation for misconduct , and he elected to waive those rights , in writing . The NDRB could find no evidence of command impropriety. The record clearly indicates the Applicant committed serious misconduct by absenting himself from his appointed place of duty for 56 days. He was notified of processing for administrative separation and advised of his rights. After considering his options, the Applicant elected (in writing) to waive his rights to rebut the proposed separation or to provide mitigating facts or evidence on his behalf. After careful consideration, the NDRB determined the Applicant’s issue to be without merit . Relief denied.

Issue 4: (Decisional) ( ) . The Applicant contends 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, employment verification letter, character letters of reference, college transcripts, driving records, credit report, and a family photo as evidence of post-service accomplishments. Although his efforts to improve his life are noteworthy, 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 c ase basis. After careful consideration of the facts and circumstances surrounding the Applicant’s case, the NDRB determined that 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, record entries , and the administrative separation process, the Board found , by a vote of 4-1, that the discharge was proper and equitable. Therefore, the awarded characterization of service shall UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain . The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. The Applicant is directed to the Addendum for additional information.

Pertinent Regulation/Law

 A. Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 1 September 2001 until Present.
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 (UA in excess of 30 days) .


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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