Upgrade.Vet

USMC | DRB | 2012_Marine | MD1201462

Original file (MD1201462.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20120627

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)       20100701 - 20110626     Active:

Period of Service Under Review:
Date of Current Enlistment: 20110627     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20120614      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 18 D a y ( s )
Education Level:        AFQT: 43
MOS: 5800
Proficiency/Conduct M arks (# of occasions): 1.9 ( ) / 2.5 ( )      Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF : UA: 20120303 - 20120426, 55 days / CONF: 20120427 - 20120521, 25 days

NJP:

- 20120302 :       Article (Absence without leave , 20111102 - 20120220, 109 days)
         Awarded: Suspended: 1MONTH

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20120302 :       For being absent from your appointed place of duty from 20111102 until 20120220.

Administrative Corrections to the Applicant’s DD 214

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

         “ 00 05 09 ”
         “ ”
         “ (109) 20111103-20120219, (55) 20120303-20120426, (25) 20120427-20120521 ”

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 6419, SEPARATION IN LIEU OF TRIAL BY 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)(b), Presumption Concerning Court-Martial Specifications .

C . 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 his recruiter told him he could not be released from the Delayed Entry Program (DEP) .
2.       The Applicant contends an Uncharacterized discharge is warranted based on his total time in service.

Decision

Date: 20 1 3 0410          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. 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 6105 counseling warning and for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave, 109 days). Additionally, the record shows the Applicant was charged with a further violation of UCMJ Article (Absence without leave ) for the period 0 3 March 2012 to 26 April 2012 ( 55 days) . For this second period of being absent without leave, his command referred charges to a Special Court-Martial. On 08 May 2012, the Applicant submitted a request for separation in lieu of trial by court-martial (SILT). In the request, the Applicant noted that he met with a qualified counsel and admitted to being guilty of violating UCMJ Article 86 . He certified a complete understanding of the negative consequences of his actions and acknowledged that characterization of service could be Under Other Than Honorable Conditions, which might deprive him of virtually all veterans benefits based upon his current enlistment. The Marine Corps accepted his request, and he was discharged accordingly.

: (Decisional) ( ) . The Applicant contends his recruiter told him he could not be released from the DEP . The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that the recruiter misled him through the recruitment process. The Applicant’s statements alone do not overcome the government’s presumption of regularity. However, even if the Applicant could show misrepresentations in the recruitment process, such misrepresentations would neither amount to a justification nor to a defense for his misconduct. Relief denied.

: (Decisional) ( ) . The Applicant contends an Uncharacterized discharge is warranted based on his total time in service. Per the Marine Corps Separation and Retirement Manual, an Uncharacterized discharge is not authorized when a member’ s separation is due to misconduct or when separation in lieu of court-martial is authorized and characterization Under Other Than Honorable C onditions is warranted by the circumstances of the case. Even though the Applicant went UA after four months of service, he was still under the jurisdiction of the UCMJ. The record shows the Applicant requested a SILT. Per regulations, to attain approval for the SILT request, the Applicant was afforded the opportunity to consult with a qualified counsel and submit a written statement. The record shows he fully understood the elements of the offense for which he was charged, and he admitted his guilt. He further certified his complete understanding of the negative consequences of his actions and that characterization of service could be Under Other Than 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 15 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 | 2013_Marine | MD1300121

Original file (MD1300121.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...
NAVY | DRB | 2012_Navy | ND1200221

Original file (ND1200221.rtf) Auto-classification: Denied

Representation: 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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include...
USMC | DRB | 2010_Marine | MD1002345

Original file (MD1002345.rtf) Auto-classification: Denied

In accordance with section 1553 (d)(2), the service secretary expedited a final decision and accorded the case sufficient priority to achieve an expedited resolution.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 governmental affairs unless there is substantial...
USMC | DRB | 2014_Marine | MD1401210

Original file (MD1401210.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant contends his discharge was inequitable because it was based on isolated incident in 48 months of service with no other adverse action. 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...
USMC | DRB | 2012_Marine | MD1200711

Original file (MD1200711.rtf) Auto-classification: Denied

Applicant’s Request:Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive:USMCR (DEP)20070816 - 20071014Active: Period of Service Under Review: Date of Current Enlistment: 20071015Age at Enlistment: Period of Enlistment: Years MonthsDate of Discharge:20100820Highest Rank:Length of Service: Year(s)Month(s)06 Day(s)Education Level: AFQT:74MOS: 1731Proficiency/Conduct Marks (# of occasions):Fitness Reports: Awards and Decorations (per DD 214):Rifle...
NAVY | DRB | 2010_Navy | ND1002340

Original file (ND1002340.rtf) Auto-classification: Denied

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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.The Applicant’s record of...
NAVY | DRB | 2014_Navy | ND1401015

Original file (ND1401015.rtf) Auto-classification: Denied

Applicant’s Request:Characterization change to:Narrative Reason change to: Summary of Service Prior Service: Inactive:USNR (DEP)19980612 - 19980824Active: Period of Service Under Review: Date of Current Enlistment: 19980825Age at Enlistment: Period of Enlistment: YearsExtensionDate of Discharge:20021101Highest Rank/Rate: ACANLength of Service: Year(s) Month(s) 08 Day(s)Education Level:AFQT: 55EvaluationMarks:Performance:NFIRBehavior:NFIROTA: NFIRAwards and Decorations (per DD 214):Pistol...
USMC | DRB | 2009_Marine | MD0901688

Original file (MD0901688.rtf) Auto-classification: Denied

” 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. 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. Additionally, the NDRB has no authority to upgrade a...
NAVY | DRB | 2013_Navy | ND1301590

Original file (ND1301590.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant contends his in-service conduct warrants an upgrade.2. 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...
NAVY | DRB | 2013_Navy | ND1301555

Original file (ND1301555.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...

Search Decisions

Decision Text

USMC | DRB | 2012_Marine | MD1201462

Similar Decisions