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USMC | DRB | 2013_Marine | MD1300500

Original file (MD1300500.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20130108

Characterization of Service Received:

Narrative Reason for Discharge: NON-RETENTION ON ACTIVE DUTY

Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to: 6404.2 IMMEDIATE RE-ENLISTMENT, KHC2

Summary of Service
Prior Service:
Inactive:         USMCR (DEP)       19930111 - 19930124     Active:          19930125 - 19961127

Period of Service Under Review:
Date of Current Enlistment: 19961128     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20001127      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 00 D a y ( s )
Education Level:        AFQT: 57
MOS: 4421
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

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

Periods of UA / CONF :

NJP:

- 19980616 :       Article (Absence without leave , 2 specifications )
         Specification 1: On or about 1330, 19980416, SNM was UA from his appointed place of duty
         Specification 2: On or about 0700, 19980413, SNM was UA from his appointed place of duty
         Awarded: Suspended:

SCM:     SPCM:    CC:      Retention Warning Counseling :

Administrative Corrections to the Applicant’s DD 214

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

         “NON-RETENTION ON ACTIVE DUTY ”

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 his DD Form 214 improperly lists him as a S ergeant twice failed to S taff S ergeant.
2 .       The Applicant contends his discharge for service limits was improper and inequitable.
3.       The Applicant contends impropriety and inequity in the deliberate material representation, omission, or concealment in the Advisory Opinion from MMPR-2 of 01 July 2003.
4.       The Applicant contends impropriety and inequit y in the deliberate material representation, omission, or concealment in the Board for Correction of Naval Records (BCNR) decision of 25 October 2005.
5.       The Appl icant contends impropriety and inequity in the deliberate material representation, omission, or concealment in the BCNR decision of 21 June 2011.
6.       The Applicant contends his post-service conduct warrants consideration for changing his Narrative Reason for Separation.

Decision

Date: 20 1 3 0314          Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall NON-RETENTION ON ACTIVE DUTY .

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 for o f the Uniform C ode of Military Justice (UCMJ): Article (Absence without leave , 2 specifications ) . The Applicant successfully completed his second enlistment and was discharged at the expiration of his active obligated service .

: (Nondecisional) The Applicant contends his DD Form 214 improperly lists him as a S ergeant twice failed to S taff S ergeant. In reviewing discharges, the NDRB may identify administrative errors on the Applicant’s DD Form 214 that fall within the scope of the NDRB’s responsibility to examine the propriety and equity of a discharge. If errors are identified, the NDRB will make recommendations to Headquarters Marine Corps for correction. The Applicant’s service record included a correction (DD Form 215 dated 29 November 2000) to his original DD Form 214 , which changed the narrative reason to “INVOL DIS (NON-RETENTION ON ACDU) NO FURSERV” and changed the separation code to JGH2. Per MARCORSEPMAN Par agraph 6412 , the narrative reason should read , “NON-RETENTION ON ACTIVE DUTY . ” T he NDRB will make a recommendation to Headquarters Marine Corps for a correction. However, the NDRB can only make recommendations for administrative corrections and has no ability to track or verify whether change recommendations are completed. It is the responsibility of the former service member to follow up with the applicable service to ensure changes are incorporated into the record.

: (Decisional) ( ) . The Applicant contends his discharge for service limits was improper and inequitable. The Applicant was denied reenlistment and was discharged with severance pay at the expiration of his active obligated service on 27 November 2000. The Applicant contends that he would have been promoted to Sergeant on 01 December 2000 based on MARADMIN 569/00 , which was released on 21 November 2000 while he was on terminal leave. The Applicant contends that becoming eligible for S ergeant on 01 December 2000 should have negated his discharge , and he should have been allowed to reenlist . The Applicant is seeking to change his narrative reason for separation to Immediate Reenlistment or Secretarial Authority. T he NDRB has no jurisdiction over reenlistment s or promotions, however, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the reason for discharge if such change is warranted . As noted previously, the NDRB identified administrative errors on the Applicant’s previous DD Form 214 and DD Form 215 and the narrative reason should read “NON-RETENTION ON ACTIVE DUTY .” Further, t he NDRB determined that since the Applicant did not receive an extension or approval for reenlistment prior to separation, his discharge at the expiration of his active obligated service on 27 November 2000 was warranted. Finally, the NDRB determined that the narrative reason of N on-Retention on Active Duty is appropriate. Relief denied.

Issues 3-5 : (Decisional) ( ) . The Applicant contends impropriety and inequity in the deliberate material representa tion, omission, or concealment from MMPR-2 and BCNR memos . The NDRB reviewed the Applicant’s service record and post-service memos from MMPR-2 and BCNR to determine if he was properly and equitably discharged. After a complete review, t he NDRB d etermined no impropriety or inequity in the MMPR-2 and BCNR memos. T he NDRB determined the Applicant’s separation at the completion of active service with an Honorable characterization was proper and equitable. Relief denied.

Issue 6: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends his post-service conduct warrants consideration for changing his Narrative Reason for Separation. The NDRB considers 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. The Applicant provided a personal statement, diplomas for an Associates in Art s and a Bachelor of Arts, a membership certificate for the National Honor Society in Paralegal/Legal Assistant Studies, proof of being Well Qualified for employment in Cook County, IL, completion of a WESTLAW Paralegal/Legal Assistant Program, completion of a U.S. Department of Labor Legal Secretary apprenticeship , a certificate of appreciation for serving in a university veterans club, five character references, and three civilian employer evaluations . As the Applicant received an Honorable characterization of service, his post-service conduct has no relevance to his Marine Corps characterization of service. Further, he was not retained on active duty after the completion of his second enlistment, and so his post-service conduct does not warrant a change to his Narrative Reason for Separation, which most clearly describes the circumstances at the end of his contracted service. 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 NON-RETENTION ON ACTIVE DUTY . 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. Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 August 1995 until 31 August 2001, Paragraph 1005, DISCHARGE FOR EXPIRATION OF ENLISTMENT OR FULFILLMENT OF SERVICE OBLIGATION .

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 .

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 | MD1300500

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