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USMC | DRB | 2012_Marine | MD1200407
Original file (MD1200407.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20111206
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)       20081020 - 20090101     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20090102     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20090804      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 03 D a y ( s )
Education Level:        AFQT: 54
MOS: NONE
Proficiency/Conduct M arks (# of occasions): ( ) / 2.1 ( )         Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle

Periods of CONF :

NJP:

- 20090522 :      Article ( Absence without leave, 20090407 - 20090424 , 17 d ays)
         Awarded: Suspended:

SCM:

- 20090616 :      Article (Willfully disobeyed a lawful order)
         Sentence: Suspended:

SPCM:    CC:

Retention Warning Counseling:

- 20090522 :      For violation of A rticle 86 , U nauthorized absence from 20090407 - 20090424

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:        


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

Applicant’s Issues

 1 .       The Applicant contends the Narrative Reason for Separation is too harsh.
 2 .       The Applicant contends his post-service conduct warrants consideration for upgrading his discharge.
 3 .       ( NDRB Issue) The character of service awarded at discharge was inequitable.

Decision

 Date: 20 1 2 1108            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 warning and non-judicial punishment (NJP) for violation o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Unauthorized absence, 1 specification). It also included one summary court-martial for violation of the UCMJ: Article 91 (Willfully disobeying a lawful order, 1 specification) . Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of a dministrative separation processing , the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board .

: (Decisional) ( ) . The Applicant contends the Narrative Reason for Separation is too harsh. Although the assigned narrative reason was proper, the NDRB determined that it was inequitable and that the more appropriate and equitable narrative reason should have been Entry Level Performance and Conduct . According to the Marine Corps Separation and Retirement Manual , a member may be separated while in an entry-level status (within the first 180 days of enlistment) if the member is unqualified for further service due to entry level performance and/or conduct, as evidenced by incapability, lack of reasonable effort, failure to adapt to the Marine Corps environment, or minor disciplinary infraction s . The regulation requires that the Applicant being separated for E ntry L evel P erformance and/or C onduct be counseled and given an opportunity to take the recommended corrective action . The Applicant met the criteria for separation due to Entry Level Performance and Conduct. After considering the facts and circumstances unique to this case, and considering the Applicant’s testimony and the documentation he provided, the NDRB determined that relief was warranted. However, because the Applicant was not notified of separation due to Entry Level Performance and Conduct, the Board voted unanimously that the characterization be changed to Secretarial Authority. Relief granted.
: (Decisional) ( ) RELIEF NOT WARRANTED. The Applicant contends his post-service conduct warrants consideration for upgrading his discharge. In addition to his testimony, he provided post-service documentation to include letters of character reference, proof of educational pursuits, pay stubs, certifications, and supporting a family. 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. To warrant an upgrade, the Applicant’s post-service efforts need to be more encompassing. The characterization of service received was appropriate considering the length of service and UCMJ violations. Relief denied.
: ( NDRB Issue) ( ) . The character of service awarded at discharge was inequitable . T he NDRB conducted 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. The Applicant’s misconduct was committed and he was notified of separation processing while in an entry level status (within the first 180 days of enlistment) . Marine Corps regulations direct that members notified of intended recommendation for discharge while in an entry level status receive an Uncharacterized character of service except in circumstances where service has been so meritorious that an Honorable is clearly warranted. In cases of misconduct, a less favorable characterization of service, such as General (Under Honorable

Conditions) or Under Other than Honorable Conditions, may be assigned. The Applicant did have misconduct , however, after considering the facts and circumstances unique to this case, and considering the testimony and documentation provided by the Applicant, the NDRB determined that, based on equitable grounds , relief was warranted. The Board voted unanimously to change the character of service to Uncharacterized. Relief granted.
Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, the Applicant’s testimony, and discharge process, the Board found Therefore, the awarded characterization of service shall and the N arrative R eason for S eparation shall change to . The Applicant is not eligible for further review from the NDRB. He may petition the Board for Correction of Naval Records using DD Form 149 for further review. The Applicant is directed to the Addendum for additional information.

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 .



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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