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USMC | DRB | 2011_Marine | MD1101538
Original file (MD1101538.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110607
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)       20030331 - 20030420     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20030421     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20031217      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 27 D a y ( s )
Education Level:        AFQT: 51
MOS: 9900
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA/ CONF : UA 20031002 - 20031109 (39 days)             CONF:

NJP:

- 20031001 :       Article ( Absence without leave , 0140-0600, from School of Infantry, 20030927 )
         Article (Assault , punched a PFC, School of Infantry, 20030928 )
         Awarded: Suspended:

- 20031113 :      Article (Absence without leave , 20031002-20031109, 39 days )
         Awarded: (to E- 1 ) RESTR (60 days) Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20030807 :       For your diagnosed physical condition not being a disability (heat exhaustion) and any resultant or aggravated condition which interferes with the effective performance of your duties .

Administrative Corrections to the Applicant’s DD 214

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

          Block 24, “ 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 P1900.16E), 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 .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article s 86 (UA greater than 30 days) and 128 (Assault) .



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

Applicant’s Issues

 1.       Applicant seeks a discharge upgrade to increase employment opportunities.
2.       Applicant seeks a discharge upgrade to reenlist in the U.S. Armed Forces.
 3.       Applicant contends his discharge was inequitable due to a misunderstanding relating to his unauthorized absence ( UA ) and the Commanding Officer ( CO ) who stated he would receive a General (Under Ho norable Conditions) discharge.

Decision

Date: 20 1 2 08 09            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. Although the Applicant’s service records are incomplete (missing administrative separation documentation to include: notification of administrative separation and acknowledgment of rights forms, and the commanding officer comments and endorsement), the Board completed a thorough review of the available documentation to determine whether discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included 6105 counseling retention warning (for condition not a disability, heat injury) and nonjudicial punishments (NJPs) for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave, 2 specifications: 0140-0600 on 27 September 2003, School of Infantry; and 1100 on 2 October to 1844 on 9 November 2003, 39 days , terminated by his surrender to military authorities ) and Article 128 ( Assault, punched a PFC, 0200 on 28 September 2003, School of Infantry ) . Based on the serious and repeated offenses committed by the Applicant, his command administratively processed him for separation. Since the NDRB did not have the complete administrative separation package documentation available for review, it could not determine whether the Applicant exercised or waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board . The Separation Code HKD1 listed on the Applicant’s DD Form 214 indicates he waive d his right to the a dministrative b oard hearing. The Applicant was placed on voluntary leave awaiting administrative separation on 3 December 2003. In the voluntary leave authorization letter issued by the Commanding General ( Marine Corps Base , Camp Lejeune NC ), the Applicant was advised that he was being recommended for a discharge characterization of service as Under Other Than Honorable Conditions. On 12 December 2003, the Separation Authority directed that the Applicant be separated from the Marine Corps with an Under Other Than Honorable Conditions discharge. The Applicant was discharged on 17 December 2003 as directed.

Issues 1-2 : (Nondecisional) The Applicant seeks a discharge upgrade to increase employment opportunities and reenlist in the U.S. Armed Forces. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge. Additionally, 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 his discharge was inequitable due to a misunderstanding relating to his UA and the CO who stated he would receive a General (Under Honorable Conditions) discharge. The NDRB conducted a detailed analysis of the Applicant’s service records to determine whether his discharge met the pertinent standards for propriety and equity. The record indicates that while the Applicant was assigned to Marine Combat Training , he was placed on a 30 - day period of limited duty ( 11 August-10 September 2003) due to heat illness. On 27

September 2003, the Applicant was reported UA from 0140 to 0600 , and subsequently received NJP on 1 October 2003 for violation of UCMJ Article 86. The next day, he absented himself from his appointed place of duty for 39 days. Although he states this period of UA was a result of a misunderstanding over a leave request he submitted to visit an ill parent, the NDRB could find no evidence within the records nor did the Applicant submit any evidence to support his claim. Additionally, the Board could find no evidence to support his claim that his CO recommended him for a General (Under Honorable Conditions) discharge .

Violations of UCMJ Article 86 in excess of 30 days are considered a serious offense per the Manual for Courts-Martial and may result in an unfavorable characterization of discharge at a minimum, or a punitive discharge ( B ad C onduct D ischarge) and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The Applicant’s command did not pursue a punitive discharge , but opted instead for an administrative discharge. While in service, the Applicant had an opportunity to defend himself during administrative separation processing, but he waived his right to the administrative board hearing . Lack of evidence notwithstanding, the Separation Authority (Commanding General, Marine Corps Base Camp Lejeune, NC) makes the final determination as whether to retain or separate a Marine from service, and if separation is decided, the appropriate characterization of service based on the member’s performance and conduct during service. After careful consideration, and with no evidence in the records or submitted by the Applicant to rebut or otherwise question the presumption of regularity in this case, the NDRB determined this issue did not provide a basis for which relief could be granted. Relief denied.

The Applicant stated that he received a Good Conduct Medal. This is incorrect. To receive a Good Conduct Medal, a Marine must serve for 3 consecutive years on active duty without misconduct. During the Applicant’s 7 months and 27 days of service, he received two NJPs. The confusion likely arose from Block 18 on his DD Form 214, which states “Good Conduct Medal date commences 20031113.” This note resets the 3-year time counter for the medal and corresponds to the date of his NJP for his last misconduct.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service and record entries, 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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