Upgrade.Vet

USMC | DRB | 2011_Marine | MD1101270

Original file (MD1101270.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20110405

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: 20010915     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080627      H ighest Rank:
Length of Service:
         Inactive:        Y ea r ( s ) M on th ( s ) 00 D a y ( s )
         Active: Y ea r ( s ) M on th ( s ) 13 D a y ( s )
Education Level:        AFQT: 90
MOS: 1141
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations : AFRM w/”M” Device SMCRM SSDR CoA

Periods of UA / CONF :

NJP:

- 20040717 :      Article ( Failure to obey an order or regulation, departed base on liberty without authority)
         Awarded : (to E-2) Susp ended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20051105 :       For unsatisfactory drill participation.

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 seeks a discharge upgrade to reenlist in the U.S. Armed Forces.
2.       Applicant contends his deployment to Iraq in support of combat operations warrants consideration for a discharge upgrade.
3 .       Applicant contends his discharge was improper due to command administrative error s in transferring him to another reserve unit.

Decision

Date: 20 1 2 06 21          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 identified two 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 standards of equity and propriety. The Applicant’s record of service included one 6105 counseling retention warning and one for o f the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey an order or regulation, proceeded off-base on liberty without permission ) . There was no evidence of trial by courts-martial. The record also reflected the Applicant missed 24 scheduled drill periods during the first seven months of calendar year 2007 (3-4 March, 4 drills; 29 March-1 April, 7 drills; 4-6 May, 5 drills; 2-3 June, 4 drills; 7-8 July 2007, 4 drills) . Based on the repeated unauthorized absence (UA) offenses committed by the Applicant, command processed him for administrative separation from the Marine Corps Reserve . When notified of a dministrative separation processing using the procedure (via certified mail) on 11 July 2007 , the Applicant failed to respond, thereby waiv ing rights to consult with a qualified counsel, submit a written statement, and request an administrative separation board . On 27 June 2008, the Separation Authority directed that the Applicant be discharged from the Marine Corps Reserve with an Under Other Than Honorable Conditions characterization of service due to Unsatisfactory Participation in the Ready Reserve.

: (Nondecisional) The Applicant seeks a discharge upgrade to reenlist in the U.S. 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.

Issues 2-3 : (Decisional) ( ) . The Applicant contends his deployment to Iraq in support of combat operations warrants consideration for a discharge upgrade. Additionally, he contends his discharge was improper due to command administrative error s in transferring him to another reserve unit. Despite a service member’s prior record of service, repetitive and/or serious offenses warrant separation from the Naval Service in order to maintain good order and discipline; the Applicant’s repetitive violation of UCMJ Article 86 (UA) meets this standard. The Applicant was fully aware of his responsibility as a drilling reservist to participate in the required weekend drill and annual active duty training periods scheduled each year while serving within his six - year reserve contract obligation. The Applicant’s record of service indicates he was mobilized from 28 June 2004 - 27 March 2005 and deployed to Iraq in support of Operation Iraqi Freedom. Eight months after his return (November 2005), the Applicant received a 6105 retention warning for being in an unsatisfactory drill status. On 15 September 2006, the Applicant’s service record indicates he successfully completed his fifth satisfactory year as a drilling reservist. However, in March 2007, he began missing scheduled drill s and remained absent until c ommencement of administrative separation processing on 11 July 2007. The Board did note that the Applicant was transferred to 4th Landing Support Battalion in Charleston, SC on 13 July 2007. However, for reasons unclear to the NDRB, he was

subsequently transferred back to his previous unit (4th Combat Engineer Battalion in Baltimore, MD) two days later on 15 July. While he may feel administrative problems related to his reserve unit transfer were an underlying cause of his misconduct, the record clearly reflects his misconduct to be willful and persistent, and pre-dated the aforementioned unit transfer. After unsuccessful attempts to contact the Applicant and encourage him to rectify his unsatisfactory drilling status, it was determined he was unfit for further service. 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. Per the Marine Corps Separation and Retirement Manual, w hen a 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 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 outweigh the positive aspects of the member’s service record. An Under Other Than Honorable Conditions discharge is warranted when a Marine commits or omits an act that constitutes a significant departure from the conduct expected from a member of the Naval Service. 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 , length of service, or combat deployment, and falls short of w hat is required for an upgrade in the characterization of service. Accordingly, and with no evidence within the record or evidence submitted by the Applicant to rebut or otherwise question the presumption of regularity in this case, the NDRB found his discharge was proper, equitable, and in accordance with the applicable orders and directives in effect at the time of his separation. 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 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.

Pertinent Regulation/Law

A. Paragraph 6213 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 1 September 2001 until Present.

B. Marine Corps Reserve Administrative Management Manual, MCO P1001R.1, Chapter 3, Reserve Participation and Administrative Procedures, paragraph 3300.

C. Table 61 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001, Guide for Characterization of Service.

D . 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 .

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 | MD1101270

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