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USMC | DRB | 2012_Marine | MD1200356
Original file (MD1200356.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20111122
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to: FAMILY HARDSHIP
        
Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       20051109 - 20060101     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20060102     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20061213      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 05 D a y ( s )
Education Level:        AFQT: 68
MOS: 0351
Proficiency/Conduct M arks (# of occasions): ( ) / 2.3 ( )         Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

NJP:

- 20060925 :       Article (Failure to obey order or regulation)
         Awarded: Suspended:

SCM:

- 20060824 :       Art icle 83 (Fraudulent enlistment, appointment o r separation)
         Article 86 (Absence without leave 0800, 20060701 to 1747, 20060731, 30 days )
          Sentence : (20060824 to 20060916, 24 days)

SPCM:    CC:               Retention Warning Counseling :

Administrative Corrections to the Applicant’s DD 214

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

          “ MISCONDUCT ”
        
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 .



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

Applicant’s Issues

 1.       The Applicant seeks a change in his RE-code.
2.       The Applicant contends his discharge was based on an isolated incident , and he was an above-average Marine with two meritorious promotions in seven months .
3.       The Applicant contends his command received three Emergency Red Cross messages , and he was promised emergency leave when he reported to his new command. However, the leave was never approved and so he went into an unauthorized absence (UA) status to tend to his mother’s severe medical conditions.
 4.       The Applicant contends his battalion commander recommended him for a General (Under Honorable Conditions) discharge.
5.       The Applicant contends his recruiter instructed him not to disclose hi s medical condition.

Decision

Date: 20 1 3 0110            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 . T he Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included for o f the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey order or regulation , on 19 September 2006 disobeyed an order issued by his commanding officer in which he was not to drink and drive or ride with drunk drivers ) and for of the UCMJ: Article 83 ( Fraudulent enlistment, appointment o r separation , the Applicant failed to disclose pre-service medical condition ) and Article 86 (Absence without leave) . Based on the offense s committed by the Applicant, command administratively processed for separation. When notified of a dministrative separation processing using the procedure, the Applicant exercised his right to consult with a qualified counsel but waived rights to submit a written statement and request an administrative board.

: (Nondecisional) . The Applicant seeks a change in his 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 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 based on an isolated incident , and he was an above-average Marine with two meritorious promotions in seven months . Despite a servicemember’s prior record of service, certain serious offenses warrant separation from the to maintain proper order and discipline. Violation of Article s 83 and 92 are such offense s that warrant processing for administrative separation regardless of grade, performance, meritorious promotions, or time in service. This usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The Applicant was found guilty of violatin g Article s 83 and 92 at a summary court-martial and an NJP . Both offenses are considered serious offenses per Appendix 12 of the Manual for Courts-Martial. The Article 86 (Absence without leave) violation is not considered a serious offense, because it was not greater than 30 days. H is command did not pursue a punitive discharge (i.e., Bad Conduct Discharge as the result of a special court-martial) but opted instead for the more lenient administrative discharge. The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization given others in similar circumstances. Relief denied.

: (Decisional) ( ) . The Applicant contends his command received three Emergency Red Cross messages, and he was promised emergency leave when he reported to his new command. However, the leave was never approved and so he went into a UA status to tend to his mother’s severe medical conditions. 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 the contention that he was wrongfully denied emergency leave. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. The NDRB conducted a thorough review of the Applicant’s record of service and determined that going UA was not mitigated by his mother’s medical conditions. In addition to going UA, the Applicant also had misconduct by his violation of UCMJ Articles 83 and 92. The NDRB determined the Applicant’s discharge was proper and equitable and further determined that changing the narrative reason for separation to Family Hardship would not be proper as the Applicant did commit a serious offense per the Manual for Courts-Martial . Relief denied.
: (Decisional) ( ) . The Applicant contends his battalion commander recommended him for a General (Under Honorable Conditions) discharge. Commanders at various levels within the chain of command may make recommendations on how a member’s service should be characterized upon discharge but acceptance and approval of those recommendations lies with the S eparation A uthority. The commanding officer’s recommendation for separation is just that, a recommendation. The Separation Authority determines whether the allegations in the notification of the basis for separation are substantiated by the evidence. There is no provisional guarantee that a Marine will receive anything that a local commanding officer recommends. In the Applicant’s case, the Separation Authority determined the Applicant committed a serious offense and directed his discharge Under Other Than Honorable Conditions for Misconduct (Commission of a Serious Offense). The NDRB determined the discharge was warranted, was proper, and was equitable. Relief denied.

 : (Decisional) ( ) . The Applicant contends his recruiter instructed him not to disclose his medical condition. The Applicant’s father submitted a statement confirming this allegation. The Applicant was found guilty at summary court-martial of violating UCMJ Article 83 (Fraudulent enlistment). At the court-martial, he would have been able to offer testimony and evidence to support his allegation. Further, upon notification of separation proceedings, the Applicant was offered the opportunity to present his case before an administrative separation board. However, he declined this right, thus accepting the basis for separation. The NDRB found no basis to offer relief on this issue. 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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