Upgrade.Vet

USMC | DRB | 2012_Marine | MD1201759

Original file (MD1201759.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20120814

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)       20040617 - 20050710     Active:

Period of Service Under Review:
Date of Current Enlistment: 20050711     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20090630      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 20 D a y ( s )
Education Level:        AFQT: 81
MOS: 0351
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (3) Pistol ( 2 ) MM

Periods of UA / CONF : UA: 20080703-20090630, 363 days (I n Hands of Civil Authorities ) / CONF:

NJP:     SCM:              SPCM:    CC:      Retention Warning Counseling :

CIVIL ARREST:

- 2008070 3 :       Charges: First degree rape and first degree sodomy. [Extracted from Notification of Separation Proceedings dated 20081013]

Administrative Corrections to the Applicant’s DD 214

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

         “ ”

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 :

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

Applicant’s Issues

1. The Applicant contends that per paragraph 6210.6 of the Marine Corps Separation and Retirement Manual, commission of a serious offense must be made , and no commission of a serious offense actually occurred since his civilian charges were dismissed .

Decision

Date: 20 1 3 0521 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 no 6105 counseling warnings and no misconduct resulting in nonjudicial punishment or court-martial. However, the Applicant was arrested on 03 July 2008 for first degree rape and first degree sodomy. Based on the Applicant’s commission of a serious offense , command administratively processed for separation. When notified of a dministrative separation processing using the procedure, the Applicant exercised right to consult with a qualified counsel , however, he waived his rights to submit a written statement and request an administrative board.

: (Decisional) ( ) . The Applicant contends that per paragraph 6210.6 of the Marine Corps Separation and Retirement Manual, commission of a serious offense must be made, and no commission of a serious offense actually occurred since his civilian charges were dismissed. In accordance with paragraph 6210.6 , a Marine may be processed for s epar ation for commission of a serious military or civilian offense when the specific circumstances of the offense warrant separation and the offense would warrant a punitive discharge if adjudicated at trial by court-martial for the same or closely related offense. Commission of a serious offense does not require a military or civilian conviction . H owever, the offense must be substantiated by a preponderance of evidence. As a result of the felony arrest, the Applicant was absent from his unit without leave for greater than 30 days, which constitutes a serious offense. As to the dismissal of the rape and sodomy charges, t he documentation submitted by the Applicant was not specific to any charges. 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.

Pertinent Regulation/Law

A. Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), 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 .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 120.

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 | 2012_Marine | MD1200468

Original file (MD1200468.rtf) Auto-classification: Denied

Therefore, the NDRB determined that the characterization of service is accurate and relief is not warranted based on issues of propriety.The NDRB requested and received the Applicant’s service medical record and VA medical treatment records. Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, and the discharge process, the NDRB determined that Therefore, the awarded characterization of service shall but the...
USMC | DRB | 2009_Marine | MD0902437

Original file (MD0902437.rtf) Auto-classification: Denied

Specifically, the Applicant’s prior service misconduct could not be used in determination of characterization of his service upon separation. Therefore, the discharge authority was bound to characterize the Applicant’s service based solely on the Marine’s overall in-service conduct. ” 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...
USMC | DRB | 2001_Marine | MD01-01142

Original file (MD01-01142.rtf) Auto-classification: Denied

The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing. IT WAS ABUSE OF PROCESS TO CONVENE AN ADMINISTRATIVE DISCHARGE BOARD FOR THIS MATTER Documentation In addition to the service record, the following additional documentation, submitted by the applicant, was considered:Copy of DD Form 214 Brief from civilian counselNinety-six pages from applicant's service recordCopy of DD Form 149 with attachment (3 pages) PART II - SUMMARY OF...
NAVY | DRB | 2014_Navy | ND1400270

Original file (ND1400270.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant contends he served honorably for two years with only one indiscretion for underage drinking and drunk on duty.2. The Applicant was provided the opportunity to present his case before an administrative board, but he waived that right, thus accepting the discharge recommended in the letter of notification.Further, the Separation Authority determined the Applicant’s...
NAVY | DRB | 2004 Marine | MD04-00297

Original file (MD04-00297.rtf) Auto-classification: Denied

After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. You should read Enclosure (5) of the Directive before submitting such a complaint.
USMC | DRB | 2007_Marine | MD0700298

Original file (MD0700298.rtf) Auto-classification: Denied

The record clearly documents that this misconduct was the reason the Applicant was discharged. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that Administrative Corrections to the Applicant’s DD 214 The NDRB did note administrative error(s) on the original DD Form 214: “930125 ” “ UNDER OTHER THAN HONORABLE...
USMC | DRB | 2005_Marine | MD0500353

Original file (MD0500353.rtf) Auto-classification: Denied

The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant contends his discharge “was inequitable because it was based on an incident which transpired off base.” Neither administrative separation nor the reason for separation, misconduct due to commission of a serious offense, require that the service member violate the UCMJ or civil law “on base.” Accordingly, relief on this basis is not warranted. The names, and votes...
USMC | DRB | 2012_Marine | MD1201140

Original file (MD1201140.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: Rehabilitation/Treatment: Criminal Records: Personal Documentation: Community Service: References: Department of VA letter: Other Documentation: Additional Statements:From Applicant: From/To Representation:From/ToCongress member: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD...
NAVY | DRB | 2009_Navy | ND0901887

Original file (ND0901887.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...
NAVY | DRB | 2014_Navy | ND1400032

Original file (ND1400032.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: Rehabilitation/Treatment: Criminal Records: Personal Documentation: Community Service: References: Department of VA letter: Other Documentation: Additional Statements:From Applicant: From/To Representation:From/ToCongress member: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD...

Search Decisions

Decision Text

USMC | DRB | 2012_Marine | MD1201759

Similar Decisions