Upgrade.Vet

USMC | DRB | 2012_Marine | MD1201892

Original file (MD1201892.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20120912

Characterization of Service Received:

Narrative Reason for Discharge:

Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to: END OF SERVICE

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       19841106 - 19841218     Active:

Period of Service Under Review:
Date of Current Enlistment: 19841219     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20000531      H ighest Rank:
Length of Service : 15 Y ea r ( s ) M on th ( s ) 13 D a y ( s )
Education Level:        AFQT: 33
MOS: 1171
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

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

Periods of UA : 19881211-20000419, 4148 days / CONF :

NJP:

- 19860205 :       Article (Absence without leave, 0730, 19860131-1400, 19860201, 1 day)
         Article ( Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer )
         Awarded: (30 days) Suspended: (15 days)

- 19861008 :      Article ( Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer )
         Awarded: Suspended:

- 19880322 :       Article ( Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer ,
         2 specifications )
         Specification 1: Disrespectful to Cpl B_ by saying to him , “F*** you , boot, you’re a boot to me so shut the F*** up . ”
         Specification 2: Disrespectful to Cpl B_ by saying to him , “That’s alright , B_, I got your number, Mother F***er . ”
         Awarded: Suspended: (Vacated on 19880711)

- 19880714 :       Article (Absence without leave, 0730, 19880705-0730, 19880707, 2 days)
         Awarded: Suspended:

- 19881006 :       Article (Absence without leave , 4 specifications )
         Specification 1: 0630-1530, 19880824 less than 24 hours
         Specification 2: 0630-0915, 19880826 less than 24 hours
         Specification 3 : 0630-0845, 19880829 less than 24 hours
         Specification 4 : 1530, 19880914-1400, 19880919, 5 days
         Awarded: Suspended:

SCM:     CC:

SPCM:

- 19870224 :       Art icle (Failure to obey order or regulation, wrongfully having a female in the BEQ)
         Art icle ( Wrongful use, possession, etc. of controlled substances , to wit cocaine )
         Sentence : 60 days (19870224-19870413, 49 days)

Retention Warning Counseling :

- 19870326 :       You have been subject to a S pecial Court - Martial for drugs, UAs, and violation of Articles 91 and 92. You have show n a blatant disregard to military authority.

- 19880308 :       SNM was counseled concerning proper respect to NCO appointed over him. Respe ct to seniors is a Marine Corps’ trademark and any lack is dealt with accordingly.

Administrative Corrections to the Applicant’s DD 214

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

         “ ”
         “ (49) 19870224-19870413, (2) 19880705-19880706, (5) 19880914-19880918, (6) 19881011-19881016, (4148) 19881211-20000419 ”

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 R etirement Manual, (MCO P1900.16E), effective 18 August 1995 until 31 August 2001.

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 seeks Department of Veterans Affairs (V A ) benefits for being exposed to toxic waste .
2.       The A pplicant contends he was unlawfully confined in the brig .
3.       The Applicant contends his in-service conduct warrants an upgrade.

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. The Applicant’s record of service included 6105 counseling warnings, for o f the Uniform Code of Military Justice (UCMJ): Article (Absence without leave, 6 specifications ) , Article ( Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer , 3 specifications ) , and for of the UCMJ: Article (Failure to obey order or regulation) and Article (Wrongful use, possession, etc. of controlled substances, cocaine). In addition, the Applicant was absent without leave from 11 December 1998 until 20 April 2000 (4,148 days). Facing a Special Court-Martial for the extended absence without leave, o n 09 May 2000, the Applicant submitted his request for separation in lieu of trial by court-martial. In the request for discharge, the Applicant noted that his counsel had fully explained the elements of the offenses for which he was charged and that he was guilty of those offenses. He certified a complete understanding of the negative consequences of his actions and 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 discharged him accordingly.

: (Nondecisional) The Applicant seeks VA benefits for being exposed to toxic waste. 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.

: (Decisional) ( ) . The Applicant contends he was unlawfully confined in the brig. The Applicant further contends that his confinement was an attempt to coerce him into wrongfully incriminating other Marines. The record contained no evidence of any wrongdoing by the Applicant’s command or anyone else in the discharge process. The NDRB presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. The NDRB discerned no impropriety or inequity and determined the Applicant’s discharge was proper and equitable. Relief denied.

: (Decisional) ( ) . The Applicant contends his in-service conduct warrants an upgrade. During the Applicant’s less than four years of service where he was actually present and on duty, he received two retention warnings, was found guilty of numerous serious UCMJ violations at 5 NJPs, was convicted of two serious UCMJ violations at a Special Court-Martial, and had poor average Proficiency and Conduct marks of 4.1/3.2. Finally, the Applicant went into an unauthorized absence status for 4,148 days and was leniently granted separation in lieu of trial by Special Court-Martial and an Under Other Than Honorable Conditions characterization of service. The Applicant’s misconduct clearly warranted a punitive Bad Conduct Discharge. Almost nothing of his service was honorable, and the NDRB is amazed he was allowed to serve as long as he did. He met the requirements for administrative separation for Misconduct (Serious Offense), Misconduct (Pattern of Misconduct), and Misconduct (Drug Abuse). Based on the Applicant’s record of service, the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant

departure from the conduct expected of members of the Naval Service, and the awarded characterization of service was warranted , proper, and equitable. The Applicant wondered why the Marine Corps treated him so poorly when he should be asking why the Marine Corps treated him so well with an administrative vice punitive discharge and allowed him to serve as long as he did. 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 | MD1201892

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