Upgrade.Vet

USMC | DRB | 2011_Marine | MD1101242

Original file (MD1101242.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20110419

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

History of Service:
Inactive:         2000 05 31 – 2000 06 11 Active: 2000 06 12 – 2000 12 23 (IADT) (HON)
SMCR:    2000 12 24 – 2003 03 04          2003 03 05 – 2003 12 26 (Mobilized/OIF) (HON)
SMCR:    2003 12 27 – 2004 05 03          2004 05 04 – Discharge (Active Reserve) (OTH)

Period of Service Under Review:
Date of Current Enlistment: 20000531     Age at Enlistment:
Period of E nlistment : Years 27 Months
Date of Discharge: 20101222      H ighest Rank:
Length of Service :
         Inactive:        Y ea r ( s ) M on th ( s ) 28 D a y ( s )
         Active: Y ea r ( s ) M on th ( s ) 23 D a y ( s )

Education Level: 12+     AFQT: 29
MOS: 0331/ 01 2 1
Pro/Cons: 4.4/4.4 Avg marks in Service   Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle , Pistol , , (2) , , AFRM(2) , , , , S MC RM , , , CoA (6) , LoA (6)

Periods of UA / CONF :

NJP:
- 20050204 :      Article (Failure to obey MCO 1700.28 - HAZING )
         Awarded: Suspended:

SCM:

SPCM:

         20100915:        Actions of Convening Authority : charges preferred to A pplicant on 20100915; referred to trial by S pecial Court - Martial on 20100916. Charges withdrawn upon acceptance of request for administrative separation in lieu of trial by S pecial C ourt -M artial. Original c harges as follows:
                  Article 107 (False Official Statement) 2 specifications
                  Specification 1 - With intent to deceive, signed an official record (unit diary entry) which he knew to be false (Processed unit dairy entry to remove his depend e nt spouse whom he was still married to and knew to be his depend e nt spouse)
                  Specification 2 - With intent to deceive, signed an official record (unit diary entry) which he knew to be false (Processed unit dairy entry to add a person as his depend e nt spouse, whom he knew at the time not to be his depend e nt spouse)
         Article 134 (Bigamy - wrongfully and bigamously marry a person, having at the time of said marriage a lawful wife.)

CC: NFIR

Retention Warning Counseling :

- 20040929 :       For Government Credit Card abuse

- 20070731 :       For failure to pay j ust debt [Extracted from supporting documents]

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “ COMBAT ACTION RIBBON, MARINE CORPS GOOD CONDUCT MEDAL (2), ARMED FORCES RESERVE MEDAL (2), IRAQ CAMPAIGN MEDAL (IRAQ), HUMANITARIAN SERVICE MEDAL, ARMED FORCES SERVICE MEDAL, SELECTED MARINE CORPS RESERVE MEDAL, GLOBAL WAR ON TERRORISM SERVICE MEDAL, NATIONAL DEFENSE SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON, PR E SIDENTIAL UNIT CITATION – NAVY, CERTIFICATE OF APPRECIATION (6), LETTER OF APPRECIATION (6), CERTIFICATE OF COMMMENDATION RIFLE MARKSMAN BADGE, PISTOL MARKSMAN BADGE ”

         “ UNDER OTHER THAN HONORABLE CONDITIONS ”
         “ IN LIEU OF TRIAL BY COURT-MARTIAL ”

The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.

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:
                                    (Annual Service Record audit, dtd 20 April 2010)
         Additional Statements :
         From Applicant:          From /To Representation:          From /To Congress m ember :

Pertinent Regulation/Law

A . Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), 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 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.       Nondecisional issues: Applicant seeks an upgrade in the characterization of his service at discharge in order to facilitate reenlistment in the Armed Forces.

2.       Decisional issues : The Applicant contends that the characterization of his service at discharge was inequitable in relation to the charges and evidence used against him in the discharge process; at the time of his request for separation in lieu of trial by court martial, the Applicant requested a General (Under Honorable Conditions) characterization .

Decision

Date: 20 1 1 08 04         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 NDRB presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant identified two decisional issue s for the NDRB’s consideration. Additionally, the NDRB c ompleted a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent stan dards of equity and propriety.

The Applicant’s record of service contained two P aragraph 6105 retention-counseling warnings and one nonjudicial punishment (NJP) for violation of Article 92 ( Failure to obey a lawful order , specifically , violation of MCO 1700.28 (Hazing) of the Uniform Code of Military Justice (UCMJ). The Applicant’s record of service reflects three satisfactory drilling years prior to his selection to the Active Reserve program, coupled with a mobilization for a nine- month period of activ e duty deployed in support of Operation IRAQI FREEDOM (OIF). The Applicant is a combat veteran ; d uring the period of combat service, the Applicant received the Combat Action Ribbon for direct actions against an enemy force. Additionally, the Applicant received the Humanitarian Service Medal for personal service during h urricane relief o perations in New Orleans, Louisiana.

The Applicant was separated from the military service pursuant to paragraph 6419 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) - Separation in Lieu of Trial by Court - Martial (SILT) . The Applicant’s Commanding Officer determined that the Applicant’s purported misconduct was detrimental to the good orde r and discipline of the service and that the misconduct warranted punitive action ; as such, the command referred charges for trial by court - martial. The Applicant submitted a written request for administrative SILT , understanding that an Under Other Than Honorable Conditions characterization was the likely outcome, but request ed consideration for a General (Under Honorable Conditions) characterization of service at discharge . The command approved the request for administrative separation and the Applicant was discharged under other than honorable conditions .

(Non-Decisional Issue ). Applicant seeks an upgrade in the characterization of his service at discharge in order to facilitate his reenlistment in the Armed Forces. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the A rmed Fo rces, and is not authorized to change a reentry code. Regulations specifically limit the NDRB’s review to a determination of the propriety and equity of a discharge. Reenlistment policy of the Marine Corps is promulgated by the Commandant, United States Marine Corps, Code MMEA, 3280 Russell Road, Quantico, VA 22134. A request for a waiver may be submitted during the processing of a formal application for reenlistment through a recruiter; neither a less than fully honorable discharge, nor an unfavorable "RE" code is, in itself, a bar to reenlistment.

(Decisional Issue ) ( ) . (1) The Applicant contends that the characterization of his service at discharge was inequitable in relation to the charges and evidence used against him in the discharge process . (2) At the time of his request for separation in lieu of trial by court - martial, the Applicant requested a General (Under Honorable Conditions) characterization , contending that i t was warranted based on his service record . In reviewing discharges, the NDRB 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. The Applicant provided no documentation to rebut the NDRB’s presumption of regularity in the processing of the administrative separation in lieu of trial by court - martial.

(Propriety) - In order to warrant separation in lieu of trial by court - martial, the Applicant must request administrative separation - in writing - for the good of the service to escape charges that ha ve been preferred against him and referred to trial by a Special Court Martial or above. The request for separation in lieu of trial contains certain basic requirements - which must be satisfied - before receiving endorsement by counsel and approval by the Separation Authority. In that request, the Applicant must clearly affirm that his rights were explained to him thoroughly - to include his right to consult with qualified counsel. Furthermore, the Applicant must admit his guilt to the charges preferred against him and must further certify that he had a complete understanding of the negative consequences of his actions, the narrative reason for his separation, and the likely characterization of his service upon separation. The Applicant must also acknowledge that, if discharged with an OTH, it might deprive him of virtually all veterans benefits.

On 20 Oct 2010, the Applicant submitted his written request for separation in lieu of trial, requesting the Separation Authority consider characterizing his service as higher than under other than honorable conditions. It was reviewed and endorsed by the defense counsel and the chain of command and was forwarded to the Separation Authority , recommending he approve the request. On 29 November 2010, the Separation A uthority approved the Applicant’s request to be separated and directed he be discharged Under Other Than Honorable Conditions . Given the requirements necessary to receive an administrative separation in lieu of trial by court - martial and the legal review associated with it, the NDRB determined that the Applicant w as separated properly from the N aval S ervice in accordance with paragraph 6419 of the MARCORSEPMAN. R elief based o n propriety is not warranted.

(Equity) – The Applicant contends that the characterization of his service at discharge was inequitable in relation to the charges and evidence used against him in the discharge process. Additionally, at the time of his request for separation in lieu of trial by court - martial, the Applicant requested a General (Under Honorable Conditions) characterization .

In the request for discharge, the Applicant noted that his counsel had fully explained the elements of the offense for which he was charged and that he was guilty of those offenses. The Applicant was involved in misconduct that warranted the unit Commander to refer charges for adjudication by trial at court - martial; this usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The Commanding Officer determined that the charges preferred against the Applicant were egregious enough to warrant trial by court - martial in order to maintain good order and discipline in the service. The Applicant then chose to request administrative separation in lieu of trial by court - martial to avoid the punitive consequences and admitted his guilt to the charges as specified. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be hel d accountable for his actions.

A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. Moreover, 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 NDRB determined the Applicant’s conduct, which forms the primary basis for determining the characterization service, reflected one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service. The NDRB further determined that the narrative reason for separation and the resulting characterization of service at discharge was proper, was equitable, was warranted, and was and remains consistent with the characterization of discharge given others in similar circumstances. As such, the NDRB determined that the Applicant’s characterization of service at discharge was appropriate . Accordingly, relief is 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 his discharge. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews and Post-Service Conduct .

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 | MD1101242

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