Upgrade.Vet

USMC | DRB | 2012_Marine | MD1200401

Original file (MD1200401.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20111201

Characterization of Service Received:

Narrative Reason for Discharge:

Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to: Review Action JNF1

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       20070205 - 20070225     Active:

Period of Service Under Review:
Date of Current Enlistment: 20070226     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20110922      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 28 D a y ( s )
Education Level:        AFQT: 70
MOS: 8152 / 0311
Proficiency/Conduct M arks (# of occasions): (10) / (11) ( Avg in Service ) Fitness R eports:

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

NJP:

- 20080613:      Article 86 (Absent without leave - absented himself from his unit, without authority, on 11 Mar 2008 and remained so absent until 20 Mar 2008 - absence terminated upon release from New York State Prison Authority (9 days) )
         Article 116 (Breach of p eace - 13 Mar 2008, involved with four other non-military persons in a drive - by shooting )
         Article 134 (Disorderly c onduct - d isorderly conduct by involvement in a drive - by shooting in New York State )
         Article 134 (Misprision of a s erious o ffense - wrongfully concealed involvement in a drive - by shooting incident from civil or military authorities )
         Awarded: RIR E-1, FOP, 60 days Restriction       Suspended: None

- 20110210 :       Article (Assault - p hysical a ssault of USO bus driver )
         Awarded: 30 days Restriction, FOP x 2 months     Suspended: All for 6 months

SCM:

- 20110223 :       Art icle (Absence without leave - Absented himself from his appointed place of duty, without authority, on 20100507 and did remain so absent until 20100903 ( 119 days ) ; absence terminated by apprehension and return to military custody )
         Sentence : (pretrial confinement 20100904-20100922, 19 days)

SPCM:    CC: None Found in Record

Retention Warning Counseling : 2

- 20080 613 :       For Commission of a Serious Offense; you were involved in a drive - by shooting in the state of New York and unauthorized absence. Failure to take corrective action and any further violations of the UCMJ may result in judicial or adverse administrative action, including but not limited to administrative separation.

- 20080618:      For lack of dependability, judgment, initiative, and violation of UCMJ (Article 86). Advised that any future misconduct, or failure to take corrective action, may result in administrative separation or judicial proceedings.

Administrative Corrections to the Applicant’s DD 214

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

         Block 29, “ (4) 20110225-20110228, (19) 20100904-20100922, (119) 20100507-20100902 ”

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 P1900.16F), 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 an upgrade to Honorable, contending that the characterization of service was inequitable in that the misconduct was an isolated incident in what was an otherwise outstanding military career.

2. The Applicant contends the separation was improper and inequitable , because the command violated a signed pre-trial agreement for NJP vice trial by court - martial , the command did not include pertinent supporting documents to the Separation Authority , and the command falsified the TAP/TAMP paperwork that was necessary for the discharge action.

3. The Applicant contends the c ommand failed to discharge the A pplicant in a timely manner after the discharge action was approv ed by the Separation Authority .

4. The Applicant contends his post-service accomplishments warrant an upgrade.

Decision

Date: 20 1 2 05 23 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 NDRB presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant identif ied three issues related to the propriety or equity of the discharge for the NDRB’s consideration . Additionally, t he NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent sta ndards of equity and propriety.

The Applicant entered military service at age 20 on a five -year enlistment contract as a Marine Corps Securit y Forces Guard after training as an Infantry man. Th e enlistment process did not require a ny waiver s to enlistment or induction standards . The Applicant’s record of service includes two paragraph 6105 retention-counseling warnings . Moreover , the Applicant’s service record documents two nonjudicial punishments and one S ummary C ourt -M artial for violations of the Uniform Code of Military Justice (UCMJ) : Article 86 (Absent without leave , unauthorized ab sence , 9 days ), Article 86 (Absent without leave , unauthorized absence , 119 days , terminated by apprehension ), Article 116 (Breach of peace), A rticle 128 ( Assault) , Article 134 (Disorderly c onduct) , and Article 134 (Misprision of a s erious o ffense). The Applicant completed 4 years and 7 months of his five -year obligated service contract. He was discharged involuntarily from the Marine Corps due to Misconduct , specifically for having established a pattern of misconduct as defined by paragraph 6210.3 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN). T he Separation Authority reviewed the Command’s recommendation for separation . He determined that the Applicant’s documented record of service established , by a preponderance of the evidence, a pattern of misconduct; that separation in the Applicant’s case was warranted; and further, that the proposed characterization of service - Under Other Than Honorable Conditions - was warranted. On 13 May 2011 , the Separation Authority approved the discharge action and directed the Applicant be discharge d for the reason s, as stated , and further specified that he receive an RE-4 reenlistment code - not recommended for reenlistment. The Applicant was disc harged on 22 September 2011.

The NDRB reviewed the Applicant’s discharge package. The precipitating event to the Applicant ’ s involuntary separation was his unauthorized absence for 119 days, terminated by apprehension. During this time, his assigned Infantry Battalion was preparing for deployment to Afghanistan in support of Operation E nduring Freedom . The Applicant absented himself from his unit, without authority, on 07 May 2010. Thirty days later , he was declared a deserter, he was dropped from his unit’s rol l s, and a DD Form 553 (DESERTER/ABSENTEE WANTED BY THE ARMED FORCES) warrant was issued to Federal, State, and local authorities seeking the Applicant’s apprehension as a Deserter and his return to military custody. Upon return to his unit, the Applicant was ordered to pre-trial confinement, pending adjudication of charges that were referred with a view of trial by S pecial C ourt -M artial. With deployment of the Applicant’s parent unit, he was assigned to a remain - behind element co-located with the Regimental Headquarters for administrative processing. On 22 February 2011 , the Applicant was advised of his rights pursuant to administrative separation. He acknowledged understanding of the basis for separation (Misconduct - Pattern of Misconduct) and the proposed recommendation for a characterization of service at discharge of Under Other Than Honorable Conditions. The Applicant exercised his right to consult with a qualified military counsel but opted to waive his right to present his case for retention before an administrative discharge hearing board. Additionally, he declined to provide written matters for the Separ ation Authority’s consideration but subsequently submitted a handwritten letter to the Separation Authority. The Applicant’s letter stated that his pattern of misconduct was due to his disagreeing with the United States being humanitarian to the enemy.

Issue 1 : (Decisional Issue ) ( ) . T h e Applicant seeks an upgrade to Honorable, contending that the characterization of service at discharge was inequitable in that the misconduct was an isolated incident in what was an otherwise outstanding military career. The NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety . A service member’s characterization of service is founded on the recognition of his performance and conduct and is not necessarily dependent upon the narrative reason for separation. When the quality of a member’s service has met the standards of acceptable conduct and performance of duty for military personnel, it is appropriate to characterize that service under Honorable conditions. A General (Under Honorable Conditions) discharge is appropriate if the member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance outweigh the positive aspects of the member’s military record. However, an Under Other Than Honorable Conditions discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service. While the Applicant may feel his misconduct was an isolated incident, the record of service documents a pattern of misconduct and the commission of a serious offense (unauthorized absence in excess of 30 days, terminated by apprehension). This pattern of misconduct began early in the Applicant’s service while assigned to special duty with Marine Corps Security Forces (NJP - drive - by shooting and incarceration) that ultimately terminated his assignment with them and resulted in orders to a Fleet Marine Force Infantry Battalion. Having been notified that any further misconduct could result in administrative separation (6105 counseling entry 20080519), the Applicant continued to disregard rules and regulations, absenting himself from his unit during pre-combat deployment work-ups for a period of 119 days - the absence was terminated by apprehension. While awaiting adjudication of the extended unauthorized absence, the Applicant physically assaulted a USO bus driver. The NDRB determined, by a vote of 5-0, that the Applicant’s conduct reflected one or more acts o r omissions that constituted a significant departure for the conduct expected of a service member. As such, the NDRB determined that the characterization of service at discharge was appropriate, was equitable, and was consistent with the characterization of discharge given others in similar circumstances and that an upgrade would be inappropriate . R elief denied.

Issue 2 : (Decisional Issue) ( ) . The Applicant contends that the separation was improper and inequitable , because the command violated a signed pre-trial agreement for NJP vice trial by court - martial; the command did not include pertinent supporting documents to the Separation Authority; and the command falsified the TAP/TAMP paperwork that was necessary for the discharge action . In accordance with the MARCORSEPMAN, a service member may be discharged involuntarily when their conduct or performance of duties meets one of the established reasons for separation. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Marine Corps. The Separation Authority and the Staff Judge Advocate reviewed the evidence as contained in the Applicant’s recommendation for separation. They determined that the Applicant’s misconduct of record supported the conclusion that the Applicant had an established pattern of misconduct, that the Applicant had been counseled appropriately regarding retention and failure to take corrective action, that the retention warning was violated, that separation from the Naval Service was appropriate, and that an Under Other Than Honorable Conditions discharge was warranted. The Applicant’s separation was administrative in nature, not punitive. Although his discharge was the result of misconduct, it was not part of a punishment awarded at trial by a punitive court-martial, which could have resulted in a substantially more harsh discharge.

The Applicant cited an unreadable copy of a standard pre-trial agreement, which he believes the command violated. The command initially referred the Applicant’s unauthorized absence of 119 days to trial by punitive S pecial C ourt- M artial. In a standard pre-tr i al agreement, the Applicant agrees to waive his right to an administrative hearing board and plead guilty to charges as specified in exchange for adjudication at a lesser, nonjudicial forum. In the Applicant’s specific case, his misconduct was adjudicated at a S ummary C ourt -M artial - an administrative , nonjudicial forum. The evidence of record documents that the Applicant agreed to the S ummary C ourt -M artial - documented by his signature - and that he did plead guilty to the charge , as specified.
The Applicant further contends his discharge was improper in that an unsigned document from the chain of command ( a recommendation for retention, vice separation) was not provided to the Separation Authority for his consideration. This issue is without merit . U nsigned documents are not official and do not provide any substantive matters for consideration . Frequently, a commander is provided with two draft documents by his administrators - one for retention, should he cho o se to recommend that after interviewing the Applicant, and one for recommending separation. Ultimately, the c ommand’s signed and approved recommendation was for separation - that was what was forwarded for consideration to the Separation Authority.

The Applicant ’ s third contention is again without merit . The record documents that the Applicant was afforded an opportunity to attend separation briefings and that it was his appointed place of duty. The record further documents that the Applicant absented himself from the separations briefings to consult with his counsel on multiple occasions. By signature, the command certified that the Applicant was afforded TAP/TAMP briefings. T hough administrative errors were found within the documentation (such as the name “Fredericks” in separation paperwork) , none would alter the outcome of separation or change the assigned characterization of service, and none of the administrative errors denied the Applicant his administrative rights as accorded in the MARCORSEPMAN. As such, t he NDRB determined that the separation was proper as issued and that no change to the characterization of service or narrative reason for separation is warranted . Relief denied.

I ssue 3 : (Decisional Issue) ( ) . The Applicant contends that the command failed to discharge the A pplicant in a timely manner after the discharge action was approved by the Separation Authority. Based on the evidence of record, the Applicant’s content ion has merit. The record documents a delay between approval of separation and debarment from Marine Corps facilities and the date the actual discharge was effected. This is usually accomplished within 10 working days. At the time of discharge, the Applicant’s parent b attalion was forward deployed in Afghanistan , and the Applicant was left under the control of a remain - behind element. Additionally, the Regimental Headquarters and Division Headquarters were preparing to deploy. Given the competing demands of combat deployments and limited administrative capability of a remain - behind element, the NDRB determined that the administrative delays were not intentional and did not harm the Applicant . As such, no change to the characterization of service or narrative reason for discharge is warranted based on this issue. Relief denied.

Issue 4: (Decisional Issue) ( ) . The Applicant submitted two completed and passed tests (one written, one oral) for the Los Angeles Sheriff’s Department, a certification to become a licensed bail agent, and an application for seasonal employment with the Teamsters Union. 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 could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum , however, completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each 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. To warrant an upgrade, the Applicant’s post-service efforts need to be more encompassing. T he Board determined that the documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration. The characterization of service received was appropriate considering the length of service and serious UCMJ violations. 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 NDRB found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain MISCONDUCT. 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 | MD1200401

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