Upgrade.Vet

USMC | DRB | 2011_Marine | MD1101682

Original file (MD1101682.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20110701

Characterization of Service Received:

Narrative Reason for Discharge: UNACCEPTABLE CONDUCT

Authority for Discharge: SECNAVINST 1920.6C

Applicant’s Request:      Characterization change to:
         Narrative Reason change to: Convenience of the Government

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       20010112 - 20010526    Active:
         USMCR (School) 20010527 - 20041008

Period of Service Under Review:
Date of Appointment : 20041009    Age:
Years Contracted: Indefinite
Date of Discharge: 20081121       H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 13 D a y ( s )
Education Level:
MOS: 3002
Officer’s Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle Pistol (2)

Periods of UA / CONF :

NJP:

- 20080812 :      Article (Disrespect toward a superior commissioned officer)
         Article (Assaulting or willfully disobeying superior commissioned officer)
         Article 93 (Cruelty and maltreatment)
         Awarded: PUNITIVE LETTER OF Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling:

- 20080229 :      For exceeding the Marine Corps height/weight and body fat standards. During the semi-annual weigh-in and PFT, you were identified to exceed your maximum allowable weight and body fit percentage. You are hereby assigned to the Body Composition Program for a period of six months during which time you will participate in the Command Alternative Remedial PT program and have your weight and body monitored every two weeks.

NDRB Documentary Review Conducted (date):        20090430
NDRB Documentary Review Docket Number:   MD09-00715
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.

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. Secretary of the Navy Instruction 1920.6C (ADMINISTRATIVE SEPARATION OF OFFICERS) effective 15 December 2005 until Present establishes policies, standards and procedures for the administrative separation of Navy and Marine Corps officers from the naval service in accordance with Title 10, United States Code and DoD Directive 1332.30 of 14 Mar 97.

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 contends it is inequitable for her to continue to suffer the adverse effects of her General discharge.
2.       The Applicant believes her post-service conduct is worthy of consideration.

Decision

Date: 20 1 2 1022                   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 Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent sta ndards of equity and propriety. The Applicant’s record of service included 6105 counseling warning and for o f the Uniform Code of Military Justice (UCMJ): Article 89 ( Disrespect toward a superior commissioned officer ), Article 90 ( A ssaulting or willfully disobeying superior commissioned officer ), and Article 93 ( Cruelty and maltreatment ) . Based on the offense s committed by the Applicant, command administratively processed for separation. On 22 August 2008 , the Applicant submitted a qualified resignation request acknowledging that she could receive a General (Under Honorable Conditions) characterization of service if separated from the Marine Corps. On 29 August 2008, the Commanding General, 3d Marine Division recommended approval of the Applicant’s resignation request. The Commanding General, III Marine Expeditionary Force recommended approval of the Applicant’s resignation request on 9 September 2008. On 10 October 2008 , t he Deputy Commandant for Manpower and Reserve Affairs recommended approval of the Applicant’s resignation request , and on 16 October 2008 , the Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved the Applicant’s resignation request.

: (Decisional) ( ) . The Applicant contends it is inequitable for her to continue to suffer the adverse effects of her General discharge. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no impropriety or inequity in the discharge action and determined that an upgrade was not warranted. Relief denied.

: (Decisional) ( ) . The Applicant contends h er post-service conduct warrants consideration for an upgrade to Honorable. 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 a personal stat ement, verification of rent payments , a letter of good standing from a credit card compan y, verification of taxes paid , Bachelor of Arts degree certificate, and four character references. E ach 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. After a careful review of the Applicant’s post-service documentation and official service records, and taking into consideration her testimony and the facts and circumstances unique to this case, the NDRB determined relief is warranted based on equitable grounds. The NDRB voted unanimously to upgrade the characterization of service to Honorable and change the narrative reason for separation to Secretarial Authority . Relief warranted.

Summary: After a thorough review of the available evidence, to include the Applicant’s testimony, summary of service, record entries, and discharge process, the Board found the discharge was proper but not equitable . Therefore, the awarded characterization of service shall and the narrative reason for separation shall change to SECRETARIAL AUTHORITY .

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 | MD1101682

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