Upgrade.Vet

USMC | DRB | 2012_Marine | MD1200403

Original file (MD1200403.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20111209

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to: oR                                     UNCHARACTERIZED
         Narrative Reason change to: FAILURE TO ADAPT/ADMIN SEP

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       20000718 - 20010715     Active:

Period of Service Under Review:
Date of Current Enlistment: 20010716     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20040617      H ighest Rank:
Length of Service : Y ea rs M on ths 02 D a ys
Education Level:        AFQT: 71
MOS: 9971
Proficiency/Conduct M arks (# of occasions): / Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of CONF :

NJP:

- 20011121 :       Article ( Absence without leave - f ail ed to report to his appointed place of duty on or about 1501, 23 October 2001 to 2330, 18 November 2001)
         Awarded: Suspended:

- 20011205 :      Article ( Absence without leave - failed to report to his appointed place of duty on or about 0730, 28 November 2001, to 0650, 29 November 2001)
         Article (Disobeying a lawful order or regulation - refusing to train on or about 0830, 29 November 2001 )
         Awarded : Susp ended:

SPCM:

- 20020221 :       Art icle (Absence without leave - UA from unit on or about 10 December 2001 until on or about 17 January 2002 , 37 days )
         Sentence : 35 days (24 days of pretrial confinement credit)

SCM: NONE        Retention Warning Counseling :

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 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURT-MARTIAL , 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 IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications .

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

Applicant’s Issues

1.       The Applicant would like an upgrade to obtain a conceal ed weapon permit.
2.       The Applicant believes his discharge characterization should be U ncharacterized , because he never left a training status.

Decision

Date: 20 1 2 1119          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 Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. With respect to a discharge adjudged by a court-martial case, 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. In response to the Applicant’s clemency request, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The Applicant’s record of service included for o f the Uniform Code of Military Justice (UCMJ): Article ( Absence without leave , : F ailed to report to his appointed place of duty on or about 1501, 23 October 2001 to 2330, 18 November 2001 and F ailed to report to his appointed place of duty on or about 0730, 28 November 2001, to 0650, 29 November 2001 ) and Article ( Insubordinate c onduct toward warrant officer, noncommissioned officer, or petty officer , ) and for of the UCMJ: Article ( Absence without leave , ). The Applicant’s service record documents a punitive conviction and punishment, as adjudged by a Special Court-Martial, on 21 February 2002. A qualified legal defense counsel represented the Applicant throughout the trial by Special Court-Martial process. Given the facts of the case, the Special Court-Martial awarded the Applicant a Bad Conduct Discharge and confinement for a period of 35 days. The case was submitted for review to the U.S. Navy-Marine Corps Court of Criminal Appeals without assignments of error; it was reviewed and the findings were affirmed on 1 6 June 200 4 . Subsequently, the Navy Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed.

: (Nondecisional) The Applicant would like an upgrade to obtain a conceal ed weapon permit. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing one’s ability to receive a concealed weapon permit. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

: (Decisional) ( ) . The Applicant believes his discharge characterization should be U ncharacterized , because he never left a training status. The Applicant’s service record shows the Applicant was adjudged by a Special Court-Martial, on 21 February 2002 . Given the facts of the case, the Special Court-Martial awarded the Applicant a Bad Conduct Discharge. Furthermore, the Applicant ’ s total time in service exceeded the maximum 180 days of continuous service required to be considered for an U ncharacterized discharge. The Applicant contends he went UA out of fear, uncertainty, and ignorance. The NDRB recognizes that many of our servicemembers are young at the time they enlist for service, however, most still manage to serve honorably. While some members may be less mature than others, the NDRB does not view a member’s claim of immaturity to be a mitigating factor or a sufficient reason for misconduct. The NDRB determined the Applicant’s conduct, which forms the primary basis for determining the character of h is service, reflected a significant departure from the conduct expected of a servicemember and that clemency was not warranted. Clemency 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

Similar Decisions

USMC | DRB | 2010_Marine | MD1001495

Original file (MD1001495.rtf) Auto-classification: Denied

Types of Documents Submitted/reviewedRelated to Military Service: DD 214:Service/Medical Record:Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Substance Abuse: Criminal Records: Family/Personal Status: Community Service: References: Additional Statements:From Applicant:From Representation:From Congress member:Other Documentation: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL...
USMC | DRB | 2009_Marine | MD0902639

Original file (MD0902639.rtf) Auto-classification: Denied

Applicant seeks an upgrade in his characterization of service to Honorable and a change in narrative reason for separation and corresponding separation code from Fraudulent Entry into Military Service to either physical disability by medical board or any other medical discharge separation code. Having reviewed the facts of the discharge, the NDRB determined that the Applicant’s characterization of service upon separation as Uncharacterized was appropriate and equitable; a change would be...
USMC | DRB | 2009_Marine | MD0900768

Original file (MD0900768.rtf) Auto-classification: Denied

Applicant’s Request:Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive:USMCR (DEP)19981024 - 19990726Active: Period of Service Under Review: Date of Enlistment: 19990727Age at Enlistment: Period of Enlistment: Years MonthsDate of Discharge:20001011Highest Rank:Length of Service: Year(s)Month(s)18 Day(s)Education Level: AFQT:46MOS: 9900Proficiency/Conduct Marks (# of occasions):()/()Fitness Reports: Awards and Decorations (per DD 214):Rifle...
NAVY | DRB | 2009_Navy | ND0902326

Original file (ND0902326.rtf) Auto-classification: Denied

Based on her diagnosis and recommendation from the doctor, the Applicant’s command administratively processed her for separation. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for...
USMC | DRB | 2010_Marine | MD1002038

Original file (MD1002038.rtf) Auto-classification: Denied

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. ” Additional Reviews : After a document review has been conducted, former members are...
USMC | DRB | 2010_Marine | MD1000070

Original file (MD1000070.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues The Applicant seeks appropriate relief by a change to his characterization of service to Honorable and a narrative reason for separation change to “Defective Enlistment” or ‘Fraudulent Entry into Military Service. Therefore, under equity, the Applicant should have been separated for erroneous enlistment or fraudulent enlistment and that his service was honorable; as such, the...
USMC | DRB | 2009_Marine | MD0902467

Original file (MD0902467.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. Decisional issues: Applicant seeks change in narrative reason for discharge and characterization of separation due to both propriety (wrong narrative reason for his circumstances) and (equity) in that he rates an Honorable characterization due to serving without misconduct. ” Additional Reviews : After a document review has been conducted, former members are eligible for a...
USMC | DRB | 2010_Marine | MD1000049

Original file (MD1000049.rtf) Auto-classification: Denied

The Applicant's case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.The Applicant’s record of service included for of the UCMJ: Article 86 (Unauthorized absence, 48 days, apprehended,1 specification).Based on the Applicant’s conviction and sentence at special court-martial, the Applicant was confined and separated with a Bad Conduct characterization of service.The Applicant provided no documentation to support a...
USMC | DRB | 2008_Marine | MD0800915

Original file (MD0800915.rtf) Auto-classification: Denied

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Court-Martial proceedings, Discharge Process and evidence submitted by the Applicant, the Board found clemency was not warranted and the sentence awarded the Applicant at his court-martial was appropriate for the offenseshe committed. The Applicant is directed to the Addendum , specifically the paragraph concerning regarding .After a thorough review of the...
NAVY | DRB | 2011_Navy | ND1100192

Original file (ND1100192.rtf) Auto-classification: Denied

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 GENERAL (UNDER HONORABLE CONDITIONS) 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. ” Additional Reviews : After a document review...

Search Decisions

Decision Text

USMC | DRB | 2012_Marine | MD1200403

Similar Decisions