Upgrade.Vet

USMC | DRB | 2013_Marine | MD1300879

Original file (MD1300879.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20130305

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)       19991230 - 20000109     Active:          20000110 - 20031003
                                             20031004 - 20071016

Period of Service Under Review:
Date of Current Enlistment: 20072017     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20110930      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 14 D a y ( s )
Education Level:        AFQT: 63
MOS: 3432 / 8012
Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle Pistol (2) (2) CoC (4) CoA (3) LoA (4) MM

Periods of UA / CONF :

NJP:

- 20080930 :       Article (Making, drawing, or uttering check, draft, or order without sufficient funds , 9 specifications )
         Specification 1: Uttered check on 20080702 for $325.00
         Specification 2: Check cashed at Rocker NCO Club on 20080703 for $164.00
         Specification 3 : Uttered check on 20080707 for $209.75
         Specification 4 : Check cashed at Rocker NCO Club on 20080707 for $200.00
         Specification 5 : Uttered check to Kadena Child Care Center on 20080718 for $328.00
         Specification 6 : Check cashed at Rocker NCO Club on 20080719 for $600.00
         Specification 7 : Check cashed at Rocker NCO Club on 20080720 for $600.00
         Specification 8 : Check cashed at Rocker NCO Club on 20080723 for $600.00
         Specification 9: Uttered check on 20080729 for $333.99
         Awarded: Suspended:

- 20101209 :      Article (General A rticle , 6 specifications )
         Specification 1: Make and utter to Marine Corps Community Services on 20100928 a check for $29.68 and failed to maintain sufficient funds for payment
         Specification 2: Make and utter to Marine Corps Community Services on 20100928 a check for $200.00 and failed to maintain sufficient funds for payment
         Specification 3 : Make and utter to Marine Corps Community Services on 20100928 a check for $200.00 and failed to maintain sufficient funds for payment
         Specification 4 : Make and utter to Marine Corps Community Services on 20101006 a check for $200.00 and failed to maintain sufficient funds for payment


         Specification 5 : Make and utter to Marine Corps Community Services on 20101006 a check for $200.00 and failed to maintain sufficient funds for payment
         Specification 6 : Make and utter to Marine Corps Community Services 20101006 a check for $200.00 and failed to maintain sufficient funds for payment
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20080930 :       For uttering nine checks totaling $3,360.74 without sufficient funds from 20080702 to 20080729. Your actions as an NCO are totally inexcusable and unsatisfactory. You are expected to lead Marines and set a positive example at all times. You have failed to display either. This conduct is prejudicial to the good order and discipline of this command and will not be tolerated.

- 20110125 :       For making and uttering six checks and then failing to maintain sufficient funds for payment of those six checks. This is not the first time you have been punished for similar misconduct. On 20080930 you were subject to NJP for uttering nine checks for a total of $3,360.74 and failing to maintain sufficient funds for payment of said checks. This type of conduct is unacceptable and is not in good keeping with the high standards expected of our Marines and will not be tolerated. As a NCO, a lot is expected from you. You are expected to set the example, influence others, and maintain good order and discipline aboard the base.

- 20110916 :       For failure to make payment in a timely manner to your Exchange Credit Program in regards to DOD Financial Management Regulation Volume 7A, Paragraph 43505. This type of conduct does not adhere to the good order and discipline of the Marine Corps ; you are advised to pay your debt in a timely manner.

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 :

Administrative Corrections to the Applicant’s DD 214

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

         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 000110 UNTIL 071016 ”

The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.

Pertinent Regulation/Law

A. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), 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 Department of Veterans Affairs ( VA ) medical benefits.
2.       The Applicant contends her post-service conduct warrants an upgrade.

Decision

Date: 20131030          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 and for o f the Uniform Code of Military Justice (UCMJ): Article 123a (Making, drawing, or uttering check, draft, or order without sufficient funds , 9 specifications ) and Article 134 (General A rticle , 6 specifications). Based on the offense s committed by the Applicant, command administratively processed for separation. When notified of a dministrative separation processing using the procedure, the Applicant waived right to consult with a qualified counsel, but exercised her rights to submit a written statement and request an administrative board . The administrative board voted 3-0 that the preponderance of the evidence supported that the Applicant had a pattern of misconduct and recommend ed separation Under Other Than Honorable Conditions.

: (Nondecisional) The Applicant seeks VA medical benefits. The 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 her post-service conduct warrants an upgrade . The NDRB is authorized to consider post-service factors in the re-characterization of a discharge. However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question. Besides the Applicant’s statement on the DD Form 293, s he failed to provide any documentary evidence on his behalf for post-service consideration. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum with the recognition that completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration. Without post-service documentary evidence, the Board determined the awarded characterization of service shall remain 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

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USMC | DRB | 2013_Marine | MD1300879

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