Upgrade.Vet

USMC | DRB | 2012_Marine | MD1200541

Original file (MD1200541.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20120112

Characterization of Service Received:

Narrative Reason for Discharge: UNSAT PARTICIPATION IN READY RESERVES

Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to: SECRETARIAL AUTHORITY

Summary of Service

Prior Service:
Inactive:         NONE              Active:

Period of Service Under Review:
Date of Current Enlistment: 20030723     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080514      H ighest Rank:

Length of Service : Inactive: Y ea r ( s ) M on th ( s ) 24 D a y ( s )
         Active: Year(s) Month(s) 28 D ay(s)

Education Level:        AFQT: 55
MOS: 3051
Proficiency/Conduct M arks (# of occasions): / Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle , , LoA , MM (2)

Periods of UA / CONF :

NJP:             SCM:             SPCM:          CC:

Retention Warning Counseling:

- 20060604 :      For unsatisfactory participation in the MC Ready Reserve, failure to attend regular scheduled drills
- 20070304 :      For unsatisfactory participation in the MC Ready Reserve, failure to attend regular scheduled drills
- 20070415 :      For unsatisfactory participation in the MC Ready Reserve, failure to attend regular scheduled drills
- 20070506 :      For unsatisfactory participation in the MC Ready Reserve, failure to attend regular scheduled drills
- 20070603 :      For unsatisfactory participation in the MC Ready Reserve, failure to attend regular scheduled drills
- 20070805 :      For unsatisfactory participation in the MC Ready Reserve, failure to attend regular scheduled drills
- 20070908 :      For unsatisfactory participation in the MC Ready Reserve, failure to attend regular scheduled drills
- 20071014 :      For unsatisfactory participation in the MC Ready Reserve, failure to attend regular scheduled drills
- 20080106 :      For unsatisfactory participation in the MC Ready Reserve, failure to attend regular scheduled drills
- 20080202 :      For unsatisfactory participation in the MC Ready Reserve, failure to attend regular scheduled drills

NDRB Documentary Review Conducted (date):        20110512
NDRB Documentary Review Docket Number:   MD10-01319
NDRB Documentary Review Findings:                 Upgrade GEN, no change to narrative reason .

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.

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

Applicant’s Issues

1.       The Applicant contends his discharge was inequitable due to miscommunication between the Applicant, medical personnel, and his chain of command.
2.       The Applicant requests a change to the narrative reason because of miscommunication between the Applicant, m edical personnel, a nd his chain of command.
3.       The Applicant contends his post-service conduct warrants an upgrade to Honorable.

Decision

Date: 20 1 2 1108          Location: Washington D.C .         R epresentation : DAV

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 ten 6105 counseling warnings for 23 missed drills. Based on the inability to maintain satisfactory drill status, command administratively processed for separation. When notified of a dministrative separation processing using the procedure, the Applicant did not respond in sufficient time to the command with his decision to exercise or waive rights to consult with a qualified counsel, submit a written statement, and request an administrative board .

: (Decisional) ( ) . The Applicant contends his discharge was inequitable due to miscommunication between the Applicant, medical personnel, and his chain of command. The Applicant also requests a change to the narrative reason because of miscommunication between the Applicant, m edical personnel, a nd his chain of command. There is credible evidence in the record to show t he Applicant missed 23 drills of his mandatory training in the Marine Corps Reserve. However, during the documentary review conducted by the NDRB in May 2011 and from the Applicant’s testimony, and that of his wife, during the Personal Appearance Hearing, the NDRB determined the Marine Corps bears some responsibility for not providing medical treatment authorized by competent Navy medical personnel. In consideration of this, the NDRB upgraded the Applicant’s characterization of service from Under Other Than Honorable Conditions to General (Under Honorable Conditions) after the documentary review in May 2011. At the Personal Appearance Hearing, the Applicant and his wife provided additional testimony to explain his medical conditions and the circumstances surrounding the failure to attend required reserve drills. After reviewing the Applicant’s service and medical records and taking into account his testimony and that of his wife, the NDRB determined that the Applicant bears some responsibility for not attending required reserve drills and that an additional upgrade in his characterization of service is not warranted. Therefore, the characterization of service will remain General and the narrative reason for separation will remain Failure to Participate. Relief denied.

Issue 3: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends his post-service conduct warrants an upgrade to Honorable. 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 provided a personal statement, a college transcript, and proof of membership in the National Environmental Health Association. 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. The characterization of service received was appropriate considering the number of missed reserve drills. 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 is not eligible for further review from the NDRB. T he Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review. 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 | MD1200541

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