Upgrade.Vet

USMC | DRB | 2011_Marine | MD1101377

Original file (MD1101377.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20110510

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)       20090303 - 20090419     Active:

Period of Service Under Review:
Date of Current Enlistment: 20090420     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20100111      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 22 D a y ( s )
Education Level:        AFQT: 44
MOS: 3500
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of CONF :

NJP:

- 20090929 :       Article ( , )
         Specification 1: Consumed alcohol under the legal drinking age
         Specification 2: Seen on multiple occasions under the influence of alcohol during the work week
         Specification 3: Admitting to riding in a POV in student status
         Specification 4: Seen at the Shoppette without authority after 2200
         Awarded : Susp ended:

- 20091120 :      Article ( , )
         Article ( Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer , )
         Specification 1: Verbally belligerent and disrespectful toward Cpl and Sgt
         Specification 2: Verbally belligerent and disrespectful toward GySgt while being questioned about an earlier incident
         Specification 3: P hysically combative and verbally belligerent toward 1stSgt, GySgt, SSgt and Sgt
         Article ( , )
         Specification 1: Caught with alcohol in barracks room
         Specification 2: Consumed alcohol under the legal drinking age of 21
         Specification 3: Caught intoxicated inside the female barracks
         Specification 4: Caught at the PX and without a liberty buddy
         Specification 5: Caught with alcohol in barracks room
         Specification 6: Consumed alcohol under the legal drinking age of 21
         Specification 7: Found in possession of two knives with a blade length of 7.5 inches
         Article ( , )
         Article ( - drunk and disorderly , )
         Awarded : Susp ended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 2 0090929 :       For violation of Article 92 (4 specifications)

- 20091105 :       For disobeying Article 92 and 86 of the UCMJ, specifically you failed to show up for an accountability formation at 0730, 20091105 and you blatantly refused to show for said formation and had to be physically removed from your barracks room.

- 20091120 :       For violations of Article 86, 91 (3 specifications), 92 (7 specifications), 107 , and 134 of the UCMJ.

Administrative Corrections to the Applicant’s DD 214

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

         Block 11, Primary Specialty, should read: “ 3500 Basic Motor T ”
         “ UNDER OTHER THAN HONORABLE CONDITIONS ”

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:
                  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 P1900.16F), 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 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 a n upgrade to reenlist into the Armed Forces.
2 .       The Applicant believes his post-service conduct is worthy of consideration.

Decision

Date: 201 2 0607             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 Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure the pertinent standards of equity and propriety were met. The Applicant’s record of service included 6105 counseling warnings and for o f the Uniform C ode of Military Justice (UCMJ): Article ( , ), Article ( , 3 specifications : Verbally belligerent and disrespectful toward a corporal and a sergeant; verbally belligerent and disrespectful toward a gunnery sergeant while being questioned concerning an earlier incident , and physically combative and verbally belligerent toward a first sergeant, a gunnery sergeant, a staff sergeant, and a sergeant ), Article ( Failure to obey an order or regulation, : 3 counts of consuming alcohol under the legal drinking age of 21 , multiple occasions of being under the influence of alcohol during the work week , admitting to riding in a POV in student status , seen at Shoppette after 2200 without authority , 2 counts of being caught with alcohol in barracks room , caught intoxicated inside the female barracks , caught at the PX and without a liberty buddy , and found in possession of two knives with a blade length of 7.5 inches ), Article ( , , denied he was under the influence of alcohol during questioning ), and Article ( , , drunk and disorderly ) . Based on the offenses committed by the Applicant, command administratively processed for separation . When notified of administrative separation processing, the Applicant rights to consult with a qualified counsel, submit a written statement, and request an administrative board. The Applicant’s command gave him the opportunity to correct his deficiencies , however, he failed to do so. Prior to discharge , the Applicant attended an alcohol abuse in-patient treatment program at Red River Hospital in Wichita Falls, Texas and was recommended to attend Alcohol and Drug Abuse Prevention classes upon his return to Fort Leonard Wood, Missouri. However, t he Applicant did not show potential for recovery, was not remorseful with regard to the events that led up to his separation, and expressed his desire to be separated from the Marine Corps as soon as possible. Based on the seriousness of the offenses, his command separated him from the Marine Corps with an Under Other Than Honorable Conditions discharge.

: (Nondecisional) The Applicant seeks a change in his RE-code and seeks to reenlist into 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 suggests his post-service achievements warrants consideration for an upgrade. The NDRB is authorized to consider post-service factors in the re-characterization of a discharge , h owever, there is no law or regulation that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Besides the Applicant’s statement on the DD Form 293 and the Chemical Dependency and Co-Occurring Disorders Treatment Certificate of Participation, he failed to provide further documentary evidence on his behalf for post-service consideration. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum with the recognition that completion 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 case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration. Without post-service documentary evidence, the Board determined 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 s ummary of s ervice, r ecord e ntries, and d ischarge p rocess, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall . 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 Disabled 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 | MD1101377

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