Upgrade.Vet

USMC | DRB | 2012_Marine | MD1200542

Original file (MD1200542.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20120112

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)       19991027 - 20000522     Active:

Period of Service Under Review:
Date of Current Enlistment: 20000523     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20040614      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 24 D a y ( s )
Education Level:        AFQT: 71
MOS: 3521
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle (2)

Period of CONF : 20040416-20040509 (24 d ays)

NJP:
- 200106 04 :      Article ( Unauthorized absence from appointed place of duty; 2 ^nd LarBn, 2 ^nd MARDIV ; 1630 , 20010601 )
         Article ( Disobeyed a lawful order from a 1stLT by not moving back into the barracks )
         Article ( Failure to obey order or regulation; underage drinking )
         Article ( Wrongfully operate a motor vehicle while under the influence of alcohol )
         Awarded: Suspended:

SCM:
- 20040416 :      Article (Failure to obey order or regulation)
         Specification 1: Having more than the authorized limit of alc o hol in a barracks room and allowing Marine s to smoke in the barracks room
         Specification 2: Driving a privately owned vehicle while impaired
         Article 108 (Destroyed a lamp with an estimated value of 100.00)
         Article 111 ( Physically controlled a vehicle while impaired with a BAC over .08. )
         Article 128 ( Assault )
         Sentence:

SPCM:    CIVIL ARREST:    CC:

Retention Warning Counseling:

- 20010604 :      For alcohol - related incident; DWI with a .09 BAC and drinking under age.

- 2002 0422 :      For alcohol - related incident, specifically DWI Apr 20 01 and 6 Jan 2002.

- 20040121 :       For alcohol - related incident, specifically DWI (.14 BAC).

Administrative Corrections to the Applicant’s DD 214

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

         Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “ C OMBAT ACTION RIBBON , N ATIONAL DEFENSE SERVICE MEDAL , S EA SERVICE DEPLOYMENT RIBBON , GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL, GLOBAL WAR ON TERRORISM SERVICE MEDAL, PRESIDENTIAL UNIT CITATION, RIFLE QUALIFICATION BADGE (EXPERT 2D AWARD) ”

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:                  Other Documentation:
                  Additional Statements:
         From Applicant:          From/To Representation:          From/To Congress member:

Pertinent Regulation/Law

A. Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present, Paragraph 1005, DISCHARGE FOR EXPIRATION OF ENLISTMENT OR FULFILLMENT OF SERVICE OBLIGATION .

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 contends he is a combat veteran of Operation Iraqi Freedom who had one NJP that led to his General discharge.
2 .       The Applicant contends his post-service conduct warrants consideration for upgrading his discharge.

Decision

Date: 20 1 2 1206          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 warnings and non-judicial punishment (NJP) for violations of the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave, 1 specification) , Article 90 ( Disobeying a superior commissioned officer, 1 specification), Article 92 ( Failure to obey order or regulation) , and Article 111 (Drunken driving, 1 specification). It also included one summary court-martial for violations of the UCMJ: Article 92 (Failure to obey order or regulation, 2 specifications), Article 108 (Destruction of m ilitary property, 1 specification), Article 111 (Drunken driving, 1 specification), and Article 128 (Assault, 1 specification). Although the Applicant served for the duration of his contract, his average P roficiency and C onduct marks on record at the time of his discharge did not meet the minimum requirement for his service to be characterized as Honorable. Standards of performance and conduct as determined by the Individual Records Administration Manual and customs of the service form the primary basis for determining characterization of service. The minimum acceptable average P roficiency and C onduct markings during an enlistment are 3.0 and 4.0 , respectively. The Applicant’s failure to achieve these standards was evidence of significant negative aspects, outweighing any meritorious military records. As a result, his service was characterized as General (Under Honorable Conditions).

: (Decisional) ( ) . The Applicant contends he is a combat veteran of Operation Iraqi Freedom who had one NJP that led to his General discharge. While the Applicant had a combat deployment to Iraq in support of Operation Iraqi Freedom, he also had three retention warnings, an NJP, and a summary court-martial during his four-year enlistment. Despite the positive aspects of a service member’s record of service, certain conditions do not warrant separation with an Honorable characterization of service. Failing the meet the average minimum require d P roficiency and C onduct markings during the period of enlistment under review is one such condition. Per the Marine Corps Separation and Retirement Manual, an Honorable characterization upon expiration of active service is appropriate when the quality of the Marine’s service has met the standards of accepted conduct and performance of duty for military personnel. Th us , characterization will be Honorable for Marines with average P roficiency marks of 3.0 or higher and average C onduct marks of 4.0 or higher. Although the Applicant completed his service obligation, his record of service included evidence of significant negative aspects, and his average C onduct marks did not meet the requirement to issue him an Honorable characterization. It was not an NJP at the end of his enlistment that caused him to drop below the minimum Conduct marks. Rather, it was numerous incidents of misconduct throughout his enlistment that led to the low marks. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, including the Applicant’s service in Iraq, the NDRB discerned no impropriety or inequity in the discharge action. Relief denied.

: (Decisional) ( ) . The Applicant contends he has been a productive citizen, maintains a full-time job, and has not been in any trouble with law enforcement since his discharge . The NDRB is authorized to consider post-service factors in the re- characterization of a discharge. However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the

period of enlistment in question. Besides the Applicant’s statement on the DD Form 293, he failed to provide any documentary evidence on his behalf for post-service consideration. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum with the recognition that 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. Without post-service documentary evidence, the Board determined the awarded characterization of service shall remain General (Under Honorable Conditions). 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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USMC | DRB | 2012_Marine | MD1200542

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