Upgrade.Vet

USMC | DRB | 2012_Marine | MD1201876

Original file (MD1201876.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20120911

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)       19990619 - 19990705     Active:

Period of Service Under Review:
Date of Current Enlistment: 19990706     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20041026      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 21 D a y ( s )
Education Level:        AFQT: 51
MOS: 3381
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle Pistol

Periods of UA : 20020319 - 20040421, 765 days; I n Hands of Civil Authorities: 20040421 - 20041026, 189 days; CONF :

NJP:

- 20000420 :       Article (Failure to obey order or regulation)
         Article (Forgery)
         Awarded: (14 days) Suspended: (7 days)

- 20000830 :      Article (Absence without leave, 0730-1020, 20000620 less than 24 hours)
         Article ( Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer , 2 specifications )
         Specification 1: On or about 20000606, was disrespectful in deportment toward SSgt J_, then known by SNM to be a superior staff noncommissioned officer, who was then in execution of his office by cursing at a female employee and causing a confrontation .
         Specification 2: On or about 20000728, was disrespectful in conduct and deportment toward SSgt H_, to wit: was disrespectful in conduct by attempting to walk away while being counseled and refusing to answer as instructed .
         Article (Failure to obey order or regulation , 2 specifications )
         Specification 1: Having knowledge of a lawful order issued by SSgt J_, to calm down, an order which it was his duty to obey, fail to obey the same by wrongfully cursing at a female employee and causing an altercation .
         Specification 2: On or about 20000608, violated a lawful order to wit: Base Order P5560.21C to wit: by driving without a driver license .
         Article ( False official statements)
         Article 108 ( Military property of the United States - sale, loss, damage, destruction, or wrongful d isposition )
         Awarded: (14 days) Suspended: (7 days)

- 20010815 :      Article (Forgery, with intent to defraud, falsely make the signature of “ODOMS GARAGE” on a Navy Marine Corps Relief Society check in the following figure, to wit: $447.28)
         Awarded: Suspended:

SCM:     SPCM:

CC:

- 20031223 :       Offense: First degree Robbery, Attempted Armed Robbery
         Sentence : 8 years at hard labor with the Louisiana Department of Corrections with credit for time served since date of arrest without the benefit of parole, probation, or suspension of sentence

Retention Warning Counseling :

- 20000830 :       For UA, insubordinate conduct toward a noncommissioned officer, f ailure to obey orders and regulations, destruction of military property , and making a false statement.

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 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 s 91, 92, 107, 108, 122 , and 123 .

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

Applicant’s Issues

1. The Applicant contends he was not provided due process, the chance to speak on his behalf, and the opportunity for legal counsel during the administrative separation process.

Decision

Date : 20 1 3 0606 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, for o f the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave , 1 specification under 24 hours), Article 91 ( Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer , 2 specifications ), Article 92 (Failure to obey order or regulation , 3 specifications), Article 107 (False official statements , 1 specification), Article 108 ( Military property of the United States - sale, loss, damage, destruction, or wrongful disposition , 1 specification), and Article 123 (Forgery , 2 specification) , a nd one civilian conviction for f irst degree armed robbery and attempted armed robbery. On 23 December 2003, the Applicant was sentenced by a civilian court to 8 years confinement with hard labor. Based on the Applicant’s misconduct, command administratively processed for separation. When notified of a dministrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board .

: (Decisional) ( ) . The Applicant contends he was not provided due process, the chance to speak on his behalf, and the opportunity for legal counsel during the administrative separation process. The Applicant was arrested and in the hands of civilian authorit ies beginning 5 April 2004 on charges of armed robbery and attempted armed robbery. On 21 May 2004, the Applicant was notified in person by his command of the intent to administratively separate him for commission of a serious offense. On 30 September 2004, the Applicant signed an acknowledgment of his rights during the administra tive separation process and waived his rights , in writing, to consult with counsel, to make a written statement in rebuttal of the separation process , and to request a n administrative separation board hearing. The Applicant received full due process and was properly and equitably separated 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 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

Similar Decisions

NAVY | DRB | 2010_Navy | ND1001985

Original file (ND1001985.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. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each...
NAVY | DRB | 2009_Navy | ND0900416

Original file (ND0900416.rtf) Auto-classification: Denied

The NDRB reviews discharges on a case-by-case basis and no evidence can be found in the Applicant’s service record to support his statement. The NDRB is not reviewing other service member’s misconduct or administrative or disciplinary actions against them. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found ADDENDUM: Information for the Applicant...
USMC | DRB | 2014_Marine | MD1401265

Original file (MD1401265.rtf) Auto-classification: 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 remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain PATTERN OF MISCONDUCT. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application...
USMC | DRB | 2014_Marine | MD1401024

Original file (MD1401024.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...
USMC | DRB | 2015_Marine | MD1500426

Original file (MD1500426.rtf) Auto-classification: Denied

The Applicant’s record of service included 6105 counseling warnings; for of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave), Article 92 (Failure to obey order or regulation; 2 specifications), and Article 107 (False official statements); and for of the UCMJ: Article 86 (Absence without leave; 3 specifications), Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer; 2 specifications), Article 92 (Failure to obey...
USMC | DRB | 2009_Marine | MD0902572

Original file (MD0902572.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. ” 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...
USMC | DRB | 2015_Marine | MD1500132

Original file (MD1500132.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. 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 remain BAD CONDUCT DISCHARGE and the narrative reason for separation shall remain COURT-MARTIAL. ” Additional Reviews : After a document review has been...
USMC | DRB | 2014_Marine | MD1400679

Original file (MD1400679.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...
USMC | DRB | 2014_Marine | MD1400186

Original file (MD1400186.rtf) Auto-classification: Denied

The Applicant received Honorable characterizations of service for his first three enlistments. Relief denied.ummary: 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...
NAVY | DRB | 2010_Navy | ND1001666

Original file (ND1001666.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1.The Applicant presented no issues for the NDRB to consider. 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...

Search Decisions

Decision Text

USMC | DRB | 2012_Marine | MD1201876

Similar Decisions