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USMC | DRB | 2013_Marine | MD1301133
Original file (MD1301133.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20130430
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)       20060626 - 20060827     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20060828     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070907      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 10 D a y ( s )
Education Level:        AFQT: 38
MOS: 0121
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of CONF :

NJP:

- 20070319 :       Article (Failure to obey order or regulation - consuming alcohol under the legal drinking age of 21)
         Awarded: Suspended: 15 DAYS

- 20070821 :      Article (Absence without leave 1200, 20070719 - 1130, 20070731, 11 days)
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20070319 :       For your violation of Article 92 . On 20070310 you violated MCCSSS Policy Letter 07-06, by consuming alcohol under the legal drinking age of 21, and you failed to obey an order issued by a LtCol not to leave the constraints of Camp Johnson on weekends while assigned as a High Risk Marine.

- 20070709 :       For your assignment to the Marine Corps B ody Composition Program . Specifically, you failed to properly maintain your body composition standards as required by MCO P6100.12. Your actions are unsatisfactory and not in accordance with the high state of readiness required by the USMC .








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 P1900.16F), 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 an upgrade to receive service benefits.
2.       The Applicant contends he warrants an upgrade based on his in-service conduct .
 3.       The Applicant contends he was stressed due to personal issues, and his command did nothing to help him or address the issues.
4 .       The Applicant contends his post-service conduct is worthy of consideration for an upgrade .

Decision

Date: 20 1 3 1219            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 Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent sta ndards of equity and propriety. The Applicant’s record of service included 6105 counseling warnings and for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave , 20070719-20070731, 11 days) and Article 92 ( Failure to obey order or regulation , 2 specific ations ). Based on the offenses committed by the Applicant, command administratively processed for separation. The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board . However, per the Applicant ’ s DD Form 214, the Separation Code HKA1 indicates the Applicant waived his right to an administrative board.

 : (Nondecisional) The Applicant seeks an upgrade to receive 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.

: (Decisional) ( ) . The Applicant contends he warrants an upgrade based on his in-service conduct. The Applicant claims to have received a Good Conduct Medal during his service. The record of evidence does not show the Applicant was awarded a Good Conduct Medal , nor does it show the Applicant met the requirements of mis conduct -free service for 3 years to rate such an award. Eligibility for the Good Conduct Medal is reset after any punishment for misconduct, to include nonjudicial punishment, and such eligibility changes are annotated in the member’s service record. The Applicant’s service record shows his eligibility to receive a Good Conduct Medal was reset to begin on the date of his last nonjudicial punishment on 21 August 2007. He would have been eligible to receive the award three years later , thereby making him eligible for the award on 21 August 2010 had he continued on active duty without any further misconduct. During his 12 months of service, the Applicant received two retention warnings and was found guilty at two NJPs of violating several UCMJ articles. After a complete review of the records, t he NDRB determined the Applicant’s conduct, which forms the primary basis for determining the character of his service, reflected a significant departure from the conduct expected of a servicemember and that an upgrade was not warranted. Relief denied.






Issue 3: (Decisional) (Equity/Propriety) RELIEF NOT WARRANTED. The Applicant contends he was stressed due to personal issues, and his command did nothing to help him or address the issues. While the Applicant may feel that his personal issues were a contributing factor to his misconduct, they do not mitigate his disobedience of the orders and directives that regulate good order and discipline in the Naval Service, demonstrating he was unsuitable for further service. The NDRB recognizes that serving in the military is challenging. Most servicemembers, however, serve honorably and therefore earn their Honorable discharges. In fairness to those servicemembers, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. There is no evidence in the record, nor did the Applicant provide any documentation, to indicate he attempted to use the numerous services available for servicemembers who undergo personal problems during their enlistments, such as the Navy Chaplain, Medical or Mental Health professionals, Navy Relief Society, Family Advocacy Programs, or even the Red Cross. The NDRB determined the Applicant’s personal problems were not mitigating factors in his misconduct. Additionally, t here is no evidence in the record, nor has the Applicant produced any evidence, to support the contention the command treated him unfairly or did not provide assistance to deal with his personal issues. It was the Applicant’s responsibility to get assistance for his personal problems. Relief denied.

Issue 4: (Decisional) ( ) . The Applicant contends his post-service conduct is worthy of consideration for 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, 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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