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USMC | DRB | 2011_Marine | MD1101485

Original file (MD1101485.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20110520

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)       20000913 - 20001024     Active:

Period of Service Under Review:
Date of Current Enlistment: 20001025     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20041024      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 00 D a y ( s )
Education Level:        AFQT: 45
MOS: 5811
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle Pistol

NJP:

- 20020819 :      Article (Failure to obey a lawful order or regulation by underage drinking)
         Awarded: Suspended: (20021022 vacated)

- 20021028 :      Article (General A rticle, Drunk and disorderly conduct)
         Awarded: Suspended:

- 20030528 :      Article 77 (Princip als , allowing another Marine to drive under the influence resulting in an accident)
         Article (Absence without leave, failed to go to PMO formation)
         Article (Failure to obey a lawful order or regulation by failing to end a personal relationship with another woman not your wife)
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling:

- 20020424:      For dereliction of duties by falling asleep in his patrol vehicle .

- 20030602 :      For poor leadership and lack of judgment regarding your alcohol - related incident on 20030508 . Specifically by driving under the influence (DUI) with your blood alcohol content .12, also having a concealed weapon in your possession .

- 20030602 :      For a pattern of misconduct due to multiple alcohol - related incidents including charges of drinking underage UA and failure to obey orders and regulations .

- 20030705:      For failure to obey orders and regulations by disobeying your SNCO and CO to end a personal relationship with another woman not your wife .

- 20040113 :       For approved recommendation for your administrative discharge due to a pattern of misconduct with the characterization of “general under honorable conditions . ” You are further advised that the execution of your administrative discharge is suspended for a period of one year from the said effective date 20040312 .

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:                  Other Documentation:
                  Additional Statements:
         From Applicant:          From/To Representation:          From/To Congress member:

Pertinent Regulation/Law

A. Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present, Paragraph 1005, DISCHARGE FOR EXPIRATION OF ENLISTMENT OR FULFILLMENT OF SERVICE OBLIGATION .

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 wants to qualify for G.I. Bill benefits.
2.       The Applicant wants t o improve employment opportunities.
3.       The Applicant contends his record of service warrants consideration for upgrading his discharge to Honorable.
4.       The Applicant contends his post-service conduct is worthy of upgrading his discharge to Honorable.

Decision

Date: 20 1 2 0802          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’s record of service included 6105 counseling warnings and non-judicial punishments for violations o f the Uniform Code of Military Justice (UCMJ): Article 77 (Princip als: Allowing another Marine to drive under the influence resulting in an accident) , Article 86 ( Unauthorized a bsence,1 specification) , Article 92 ( Failure to obey order or regulation, 2 specifications ) , and A rticle 134 ( General Article , Drunk and disorderly conduct, 1 specification) . Although the Applicant served for the duration of his contract, his average P roficiency and C onduct marks on record at the time of his discharge did not meet the minimum requirement for his service to be characterized as Honorable. Standards of performance and conduct as determined by the Marine Corps Separation and Retirement Manual, Individual Records Administration Manual, and customs of the service form the primary basis for determining characterization of service. The minimum acceptable average P roficiency and C onduct markings during an enlistment are 3.0 and 4.0 , respectively. The Applicant’s failure to achieve the standard for conduct was evidence of significant negative aspects, outweighing any meritorious military records. As a result, his service was characterized as Genera l (Under Honorable Conditions).

: (Non - decisional) The Applicant wants to qualify for G.I. Bill benefits. There is no requirement, or law, that grants re-characterization solely on the issue of facilitating access to VA benefits. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of improving a former service-members eligibility to receive the G.I. Bill. Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge.

: (Non-decisional) The Applicant wants his discharge upgraded to improve employment opportunities. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

: (Decisional) ( ) . The Applicant contends the positive aspects of his record of service warrants consideration for an upgrade. Despite a service member’s record of service, per the Marine Corps Separation and Retirement Manual, an Honorable characterization upon expiration of active service is appropriate when the quality of the Marine’s service has met the standards of accepted conduct and performance of duty for military personnel. Therefore, characterization will be honorable for Marines with average P roficiency marks of 3.0 or higher and average C onduct marks of 4.0 or higher. Although the Applicant completed his service obligation, his record of service included evidence of significant negative aspects and his average C onduct marks did not meet the requirement to issue him an Honorable discharge . After a thorough review of the records, the NDRB discerned no impropriety or inequity in the discharge action. Relief denied.

Issue 4: (Decisional) ( ) . The Applicant provided documentation and a statement regarding his post-service conduct, character, and achievements. The NDRB considers 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. The Applicant provided evidence of employment in support of Operation Iraqi Freedom, a

certificate of appreciation from his employer, and a personal statement indicating that since his discharge he has matured and stayed out of trouble . To warrant an upgrade, the Applicant’s post-service efforts need to be more encompassing. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum . However, 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. The Board determined that the documentation submitted by the Applicant does not demonstrate if his in-service misconduct was an aberration. 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

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USMC | DRB | 2011_Marine | MD1101485

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