Search Decisions

Decision Text

USMC | DRB | 2011_Marine | MD1101218
Original file (MD1101218.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110413
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)       19950328 - 19950604     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19950605     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19980227      H ighest Rank: PFC
Length of Service : Y ea rs M on ths 23 D a ys
Education Level:        AFQT: 51
MOS: 6022
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      NDSM

Periods of CONF : 19960703-19960802, 31 days

NJP: 2

- 19960328 :      Article 123 (Forgery, falsely alter a check from father from $100.00 to $900.00)
         Article 123a (Making, drawing, or uttering a check, draft, or order without sufficient funds, 2 specifications)
         Article 134 (General A rticle, willfully lied to a senior enlisted member about the forgery)
         Awarded: RIR RESTR Suspended: RIR [Vacated 19960409]

- 19960912 :      Article 86 (Absence without leave, 2 specifications)
         Specification 1: 19960523 - 19950614, 23 days, apprehended
         Specification 2: 19960621 - 19960702, 12 days, apprehended
         Awarded: FOP Susp ended: FOP

SCM: NONE SPCM: NONE CC: NONE

Retention Warning Counseling : 3

- 19960328 :       For forgery of a check and failure to admit the offense during investigation to a senior enlisted member

- 19960417 :       For disrespect to senior enlisted member and disobedience of a lawful order

- 19960507 :       For poor financial planning, specifically a PCS move, marriage, and assignment to first duty station





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 :        

Pertinent Regulation/Law

 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 .



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

Applicant’s Issues

 1.       The Applicant seeks an upgrade in order to r e-enlist in the Armed Forces.
2.       The Applicant contends family problems were contributing factors in his misconduct , and he further contends that his discharge characterization is unjust and improper , because he suffered repeated harassment and resentment from his command that affected his time in the service.

Decision

Date: 20 1 2 0607            Location: Washington D.C .         R epresentation : NONE

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 Board did complete a thorou gh review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included three 6105 counseling warnings and two nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, 2 specifications , Specification 1: 19960523 - 19950614, 23 days, apprehended and Specification 2: 19960621 - 19960702, 12 days, apprehended), Article 123 (Forgery, falsely alter a check from father from $100.00 to $900.00), Article 123a (Making, drawing, or uttering a check, draft, or order without sufficient funds, 2 specifications), and Article 134 (General A rticle, willfully lied to a senior enlisted member about the forgery). Based on the offenses committed by the Applicant, his command administratively processed him for separation. When notified of a dministrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board .

: (Nondecisional) Applicant seeks an upgrade in order to re-enlist in the Armed Forces. 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 B oard for Correction of Naval Records 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.

: (Decisional) ( ) . The Applicant contends family problems were contributing factors in his misconduct , and he further contends that his discharge characterization is unjust and improper , because he suffered repeated harassment and resentment from his command that affected his time in the service. The Applicant stated that his Gunnery Sergeant and 1 st Sergeant denied his request for leave when he found out his mother was very ill. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was denied leave or liberty or that he was continuously harassed and resented by his command. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. The Applicant’s service included three retention warning s and two nonjudicial punishments for violations of UCMJ Articles 86, 123 , 1 23a , and 134. Violations of UCMJ Article s 1 23 , 1 23a , and 134 are considered serious offenses for which a punitive discharge is authorized. During the separation proceedings, the Applicant waived his right to consult with counsel, request a hearing before an Administrative Separation Board, and submit a rebuttal to the separation. If the Applicant believed there were mitigating circumstances, it was his obligation to contest those charges at the time they were made. During an Administrative Separation Board, he would have had the opportunity to mount a defense against the charges. The NDRB determined the Applicant’s discharge was proper and equitable . Relief denied.


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 Therefore, the awarded characterization of service shall 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.


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

Similar Decisions

  • NAVY | DRB | 2009_Navy | ND0900021

    Original file (ND0900021.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated to Military Service: DD 214: Service/Medical Record: Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Substance Abuse: Criminal Records: Family/Personal Status: Community Service: References: Additional Statements: From Applicant: From Representation:From Congress member: Other Documentation: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL...

  • NAVY | DRB | 2011_Navy | ND1100834

    Original file (ND1100834.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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/ToCongress member: Pertinent Regulation/Law A. DEPARTMENT OF THE NAVYNAVAL...

  • USMC | DRB | 2007_Marine | MD0700070

    Original file (MD0700070.rtf) Auto-classification: Denied

    After a thorough review of the Applicant’s record, issues submitted, and post service accomplishments, the Board determined that clemency was not warranted and that the sentence awarded the Applicant at his court-martial, as approved, was appropriate for the offenses he committed.In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. ...

  • NAVY | DRB | 2007_Navy | ND0700972

    Original file (ND0700972.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to:Narrative Reason change to: Applicant’s Issues:1. The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.

  • NAVY | DRB | 2010_Navy | ND1000567

    Original file (ND1000567.rtf) Auto-classification: Denied

    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. Relief denied.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 Therefore, the awarded characterization of service shall and...

  • USMC | DRB | 2013_Marine | MD1300871

    Original file (MD1300871.rtf) Auto-classification: Denied

    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 Therefore, the awarded characterization of service shall 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. ” Additional Reviews : After a document review has been conducted, former members...

  • NAVY | DRB | 2009_Navy | ND0902603

    Original file (ND0902603.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to:Narrative Reason change to: Summary of Service Prior Service: Inactive:USNR (DEP)19980827 - 19990628Active: Period of Service Under Review: Date of Current Enlistment: 19990629Age at Enlistment:Period of Enlistment: YearsExtensionDate of Discharge:20000313Highest Rank/Rate:MM3Length of Service: Year(s)Month(s)15 Day(s)Education Level:AFQT: 76EvaluationMarks:Performance:3.0(1)Behavior:1/0(1)OTA: 2.33Awards and Decorations (per DD 214):NONEPeriods...

  • NAVY | DRB | 2013_Navy | ND1301399

    Original file (ND1301399.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. 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 Therefore, the awarded characterization of service shall and the narrative reason for separation shall change to. ” Additional Reviews : After a document review has been conducted, former members are...

  • USMC | DRB | 2009_Marine | MD0900168

    Original file (MD0900168.rtf) Auto-classification: Denied

    The Board determined the characterization of service received, “General (Under Honorable Conditions)”, was an appropriate characterization considering the length of service and the UCMJ violations involved, and based on the limited post service documentation provided, an upgrade would be inappropriate. The NDRB determined the awarded discharge was appropriate and an upgrade would be inappropriate.After a thorough review of the available evidence, to include the Applicant’s Summary of...

  • NAVY | DRB | 2005_Navy | ND0501019

    Original file (ND0501019.rtf) Auto-classification: Denied

    The Applicant requests her characterization of service received at the time of discharge be changed to honorable. PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Inactive: USNR (DEP) 19930205 - 19930524 COG Active: USN 19930525 - 19960710 HON Period of Service Under Review :Date of Enlistment: 19960711 Date of Discharge: 20010427 Length of Service (years, months, days):Active: 04 09 17 (Does not exclude lost time.) I most strongly recommend that...