Upgrade.Vet

USMC | DRB | 2012_Marine | MD1200097

Original file (MD1200097.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20111018

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:                           Active:

Period of Service Under Review:
Date of Current Enlistment: 20030225     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080501      H ighest Rank:
Length of Service:
         Inactive:        Year(s) Month(s) 24 D ay(s)
         Active: Year(s) Month(s) 29 D ay(s)
Education Level:        AFQT: 44
MOS: 2146 / 1812
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      RIFLE SS SMCRM AFRM (2) (2) COA (2)

Periods of UA / CONF :

NJP:     SCM:     SPCM:    CC:

Retention Warning Counseling:

- UNDATED :       For unauthorized absence from drills on 20070209-20070211. [Applicant not available for signature.]

- UNDATED :       For unauthorized absence for the 20070323-20070325 drills. [Applicant not available for signature.]

- 20040110 :      For unauthorized absence from drills on 20040110-20040111.

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. Paragraph 6213 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 1 September 2001
until Present.

B. Marine Corps Reserve Administrative Management Manual, MCO P1001R.1, Chapter 3, Reserve Participation and Administrative Procedures, paragraph 3300.

C. Table 61 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001, Guide for Characterization of Service.

D . 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 he was a 4.0 Marine, but was rated at 0.0 when he was discharged.
2 .       T he Applicant contends that documentation sent through his S enator’s office requesting a H ardship discharge was never acknowledged by his command .
3.       T he Applicant contends he was discharged based on documentation he never signed and claims some of the documentation was forged.

Decision

Date: 20 1 2 1018          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 . The Applicant had at least nine unexcused drills in less than a 12-month period. Based on his unsatisfactory drill participation, his command administratively processed him for separation. The Applicant’s command sent him a certified letter notifying him of discharge proceeding s, but t he Applicant failed to respond to the notification and submit his acknowledgment of rights, which constitutes a waiver of those rights.

: (Non - decisional) The Applicant contends he was a 4.0 Marine, but was rated at 0.0 when he was discharged. The P roficiency and C onduct markings received for a particular occasion such as transfer, reduction in rank, desertion, etc., affects the service member ’ s overall average in service. The Applicant’s service record reflect s that his average P roficiency and C onduct markings while in service were 4.0/4.1 , respectively. Regulations limit the NDRB’s review to the propriety and equity of the discharge. Regardless of whether his P roficiency and C onduct markings are accurate or not , the NDRB has no authority to change them. Also, his markings had no bearing on his inability to maintain satisfactory drill participation and so had no bearing on the propriety or equity of his discharge. Concerns regarding the accuracy of P roficiency and C onduct markings can be addressed to the Board for Correction of Naval Records.

: ( Non-decisional) The Applicant contends that documentation sent through his S enator’s office requesting a H ardship discharge was never acknowledged by his command. This issue does not serv e to provide a basis upon which the NDRB can grant relief. Regulations limit the Board’s review to the propriet y and equity of the discharge. According to documentation provided by the Applicant , particularly Inspector-Instructor, Battery P, 5 ^th B attalion, 14 ^th Marines letter date d 24 October 2007, the Applicant’s command did respond to C ongressional correspondence regarding his desire to be discharged based on family hardship. His command submitted the respon s e to Commandant of the Marine Corps , Office of Legislative Affairs Correspondence (OLAC). The OLAC section communicates with the Congressional Staff on matters such as those submitted by the Applicant through his Congressman. A complete review of the Applicant’s records reveals the Marine Corps Reserve disapproved the Applicant’s request for a Hardship discharge, because the Applicant failed to maintain satisfactory Reserve participation.

: (Decisional) ( ) . The Applicant contends he was discharged from the Marine Corps based on documentation he never signed and claims some of the documentation was forged. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support his contention that the documentation found in his record was forged. His statement alone was not sufficient to overcome the government’s presumption of regularity in this case. Furthermore, his command sent him a certified letter notifying him of discharge proceeding s . Enclosed with the letter was an Acknowledgment

of Rights to be Exercised or Waived , which the Applicant was supposed to i nitial, sign, date, and return to the Command , but failed to do so. According to Marine Corps regulation s , failure to acknowledge receipt or submit a timely reply constitutes a waiver of rights. The Applicant never completed and returned the signed form. Therefore, the command was authorized to proceed with separating him from the Marine Corps. The NDRB concluded that relief based on this issue as not warranted. 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 | 2012_Marine | MD1200097

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