Upgrade.Vet

USMC | DRB | 2013_Marine | MD1300299

Original file (MD1300299.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20121127

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)       20070430 - 20070520     Active:

Period of Service Under Review:
Date of Current Enlistment: 20070521     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20110520      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 00 D a y ( s )
Education Level:        AFQT: 36
MOS: 3381
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

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

Periods of CONF :

NJP:

- 20100325 :      Article (Absence without leave - failed to show up to Physical Fitness Training)
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling:

- 20090715 :      For your assignment to the Marine Corps Body Composition Program (BCP) . Specifically, you failed to maintain your body standards as required by M CO 6110.3. Your actions are unsatisfactory and not in accordance with the high state of readiness required by the Marine Corps. You are being placed on the BCP first assignment.

- 20090928 :      For unauthorized absence. Specifically, you did not show up to BCP on 20090928 at 0630.

- 20091006 :      For your failure of the Marine Corps Combat Fitness T est (CFT) taken on 20081002. You specifically failed the Movement - to - Contact portion, running over the required 3 minutes and 48 seconds time limit. This conduct is inexcusable and will not be tolerated.

- 20091015 :      For your unauthorized absence. You were UA from appointed place of duty , which was BCP on 20091015. This conduct is inexcusable and will not be tolerated.

- 20100218 :      For your failure to show up at the Marine Corps Body Composition remedial PT . On 20100217 you were UA from your designated place , which was remedial PT. At 0600 on 20100217 you were missing from the run session. You are on this program because you failed to meet height and weight standards, therefore you need to realize that this program is for your benefit and it is mandatory. You were counseled in the beginning that it is your responsibility to show up on time and log in the PT tracker. You have been marked in you r PT log as unauthorized absence.

- 20100516 :      For your lack of financial stability. You have received your first Videos ‘ N ’ More (NCCS) notice. You have received an overdue notice stating your payment is past due. You have become financially irresponsible , and you will need to return your video rental immediately.

- 20100628 :      For your failure of the Marine Corps Physical Fitness T est (PFT) taken on 20100625. Specifically, you failed to meet the required run time of 28 minutes and the required pull ups of 3. This conduct is inexcusable and will not be tolerated.

- 20100707 :      For unauthorized absence. You were UA from your appointed place of duty , which was BCP on 20100707 at 0630. SNM did not show. This conduct is inexcusable and will not be tolerated.

- 20100716 :       For your poor judgment on 20100714. On 20100707, you were instructed to write or type up a rebuttal statement concerning you unauthorized absences incident from the BCP . You failed to turn in your rebuttal to the physical training instructor by 20100714. SNM needs to understand that rules and regulations are meant to be followed. This type of behavior will not be tolerated.

- 20100805 :      For disloyal statements. Specifically, on 20100804 you communicated racial slurs on an authorized Marine Corps social network, in which the Food Service Company Commander viewed. This type of behavior is unacceptable and will not be tolerated. You need to understand this type of behavior does not promote good order and discipline within your unit or the United States Marine Corps.

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. Paragraph 6215, WEIGHT CONTROL FAILURE , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16 F ), 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 .

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

Applicant’s Issues

1.       The Applicant seeks an upgrade t o qualify for education benefits.
2.       The Applicant contends his weight control failure was only one year out of his four years of service.

Decision

Date: 20 1 3 0905          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 10 6105 counseling warnings and for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave, 1 specification). Based on the Applicant’s weight control failure, 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 and submit a written statement .

: (Nondecisional) The Applicant seeks an upgrade to qualify for education 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 re-characterization 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. Furthermore, 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.

: (Decisional) ( ) . The Applicant contends his weight control failure was only one year out of his four years of service. During the Applicant’s four years of service he was found guilty at an NJP of violating UCMJ Article 86, received below-average Proficiency and Conduct marks of 4.1/3.9, and received 10 retention warnings for being UA, assignment to the BCP, failing the PFT and the CFT, lack of financial stability, poor judgment, and disloyal statements. The Applicant was given multiple opportunities to conform to the Marine Corps height, weight, and physical fitness standards, yet failed to do so. Even if he had reached the Completion of his Required Active Service, he still would have received a General discharge due to his below-average Conduct marks of 3.9. After a complete review of the records, the NDRB determined his discharge was warranted, proper, and equitable. 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 | 2013_Marine | MD1300299

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