Upgrade.Vet

USMC | DRB | 2011_Marine | MD1101782

Original file (MD1101782.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20110722

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)       20020115 - 20020225     Active:

Period of Service Under Review:
Date of Current Enlistment: 20020226     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070710      H ighest Rank:
Length of Service : Y ea rs M on ths 14 D a ys
Education Level:        AFQT: 45
MOS: 6062
Proficiency/Conduct M arks (# of occasions): (11) / (11)        Fitness R eports:

Awards and Decorations ( per DD 214):      GWOTSM AFEM GWOTEM SSDR NDSM NUC PUC COA (2)

Periods of UA :

NJP: 1

- 20021204 :       Article 92 (Failure to obey order or regulation)
         Awarded: FOP RESTR EPD Suspended:

SCM: NONE         CC: NONE

SPCM: 1

- 20050726 :       Art icle 112 a (Wrongful use of controlled substance, methamphetamine ( 3656 ng/ml ) , amphetamine ( 971 ng/ml )
         Sentence : RIR FOP CONF 6 months (20050726 - 20051207, 135 days)

Retention Warning Counseling : 4

- 20021219 :       For being an unauthorized guest in room on several occasions, having alcohol related incidents on several occasions, unauthorized absences, making false official statements, and constantly showing disobedience of lawful orders and disrespect for authority

- 2005 1208 :       For positive urinalysis results for methamphetamine

-20051214:       For Conduct mark of 3.7

- 20070108 :       For assignment to the Marine Corps Body Composition Program

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. 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 seeks to have his rank restored , back pay , and financial restit ution for wrongful confinement.
2 .       The Applicant contends his court-martial was dismissed and , therefore, his P ro ficiency / C on duct marks of 1.0/1.0 should be replaced, which will bring his marks up to the minimum level to receive an Honorable characterization .

Decision

Date: 20 1 2 0913          Location: Washington D.C .         R epresentation : NONE

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 four 6105 counseling warnings , one non-judicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation) , and one S pecial C ourt- M artial for violation of the UCMJ: Article 112 a (Wrongful use , possession, etc . of controlled substance, methamphetamine). The Applicant was discharged at the end of his active obligated service after an appellate review overturned his Special Court-Martial conviction .

Issue 1: (Nondecisional) The Applicant seeks to have his rank restored , back pay , and financial restit ution for wrongful confinement. The NDRB is only authorized to review the propriety and equity of a discharge and is not authorized to restore rank or authorize financial restitution. The Applicant can apply to the Board for Correction of Naval Records using DD Form 149 to seek these remedies.

Issue 2 : (Decisional) ( ) . The Applicant contends his court-martial was dismissed and , therefore, his P ro ficiency / C on duct marks of 1.0/1.0 should be replaced, which will bring his marks up to the minimum level to receive an Honorable characterization . In accordance with Paragraph 1004 of the Marine Corps Separation and Retirement Manual, an Honorable characterization of service upon the expiration of active duty is appropriate when the quality of a Marine’s service has met the standards of accepted conduct and performance of duty for military personnel. Therefore, characterization of service will be Honorable for Marines with average Proficiency marks of 3.0 or higher and average Conduct marks of 4.0 or higher. The Applicant completed his obligated service and his overall marks for P roficiency and C onduct were 3.9/3.8 , respectively, including the 1.0 / 1.0 the Applicant received after the Special Court - Martial. However, t he Applicant’s records included a Special Court - Martial Order 12-09 dated 2009 JUL 31 in which the Commanding Officer , Marine Aviation Logistics Squadron 13 dismissed the charges and specifications preferred in the Special Court - Martial without prejudice. When the NDRB remov ed the Applicant’s 1.0/1.0 Pro/Con mark s, his calculated enlistment marks are 4.2/4.1, which is above the 3.0/4.0 requirement for an Honorable characterization. Although the Applicant’s record of misconduct during his enlistment typically would have resulted in an Under Other Than Honorable Conditions discharge, he was allowed to finish his enlistment and so an upgrade to Honorable is warranted. Relief granted .

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 COMPLETION OF REQUIRED ACTIVE SERVICE . 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 | MD1101782

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