Upgrade.Vet

USMC | DRB | 2013_Marine | MD1301270

Original file (MD1301270.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20130529

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)       20080823 - 20080921     Active:

Period of Service Under Review:
Date of Current Enlistment: 20080922     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20120921      H ighest Rank:
Length of Service : Y ea rs M on ths 00 D a ys
Education Level:        AFQT: 41
MOS: 3381
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214): KDSM GWOTSM CoC

Periods of UA / CONF :

NJP:

- 20100304 :       Article (Insubordinate conduct toward warrant, noncommissioned, petty officer; on 12 February 2010 in Barracks 1226 Camp Kinser, was verbally disrespectful to Cpl G_____)
         Article (Fail ure to obey order or regulation; on 12 February, at about 2345, was found UA for the 2345 red card holder accountability formation and was found to be asleep in the room of LCpl G____ after visiting hours)
         Awarded: Suspended:

- 20100712 :      Article (Failure to obey order or regulation, on or about 8 July 2010 LCpl Mercado was not found in her living quarters for Combat Logistics Regiment 37’s Health and Comfort inspection, but was found around 0450 in LCpl ___’s room, a male Marine.
         Awarded: Suspended:

- 20110811 :      Article (Absence without leave; from 1800, 20110805 to 0840, 20110806 )
         Article (Failure to obey or regulation; failed to ens ure her vehicle was registered, driving on tags that expired 18 July 2011)
         Article (False official statements ; with the intent to deceive the command, stated that her father had passed away and needed to take emergency leave, which was false in that her father had not passed away)
         Awarded: Suspended:

- 20111109 :      Article (General Article [extracted from counseling warning dated 20111109])
         Awarded: NFIR Suspended: NFIR

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20100304 :       For violation of Article s 91 and 92; reference NJP dated 20100304

- 20100712 :       For violation of Article 92; reference NJP dated 20100712

- 20111109 :       For violation of Article 134 - on 1 November 2011 you lagged in a run for remedial conditioning. On 8 November 2011, your Company First Sergeant ran with you during the MLG group run and noted that you failed to put forth any effort to remain with the company during the short and slow run.

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. Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present, 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 .

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

Applicant’s Issues

1.       The Applicant seeks an upgrade to qualify for educational benefits.
2.       The Applicant contends her discharge is inequitable based on mistreatment and unjust punishment by her command that was looking for ways to discharge her after she reported a sexual assault by a sergeant.

Decision

Date : 20 1 4 0116          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 6105 counseling warnings and for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave), Article 91 ( Insubordinate conduct toward warrant, noncommissioned, petty officer) , Article 92 (Failure to obey order or regulation, 3 specifications), Article 107 (False official statements), and Article 134 ( General A rticle ) . The Applicant reached the end of her active obligated service and was separated with a General (Under Honorable Conditions) characterization of service due to below-average Conduct marks during her enlistment.

: (Nondecisional) The Applicant seeks an upgrade to qualify for educational 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. 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 her discharge is inequitable based on mistreatment and unjust punishment by her command that was looking for ways to discharge her after she reported a sexual assault by a sergeant. The Applicant contends that instead of receiving the help she needed, she was only further abus ed mentally by her command and taken to NJP u njustly in an effort to separate her. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support her issue. The Applicant’s service and medical record s do not contain , nor has the Applicant provided, any evidence to support the contention that her command failed to provide her access to appropriate medical treatment. Furthermore, the record does not contain, nor has the Applicant provided, any evidence of a sexual assault, any evidence that her command rejected her claim of a sexual assault, or any evidence that supports the contention that her comman d abused her or wrongfully charged her with violations of the UCMJ only in an effort to separate her from the Marine Corps. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. In fact, her record of service shows quite the opposite from what she is claiming. Misconduct of the frequency and severity committed by the Applicant typically would have resulted in an Under Other Than Honorable Conditions characterization of service. However, her command repeatedly determined she was fit to serve and warranted continued service to correct her poor behavior. Despite continued misconduct by the Applicant, however, her command retained her in service until the end of her enlistment. In accordance with Paragraph 1004 of the Marine Corps Separation and Retirement Manual, an Honorable characterization of service upon the expiration of active duty is appropriate when the quality of a Marine’s service has met the standards of accepted conduct and performance of duty for military personnel. Therefore, characterization of service will be Honorable for Marines with average Proficiency marks of 3.0 or higher and average Conduct marks of 4.0 or high er. The

Applicant completed her obligated ser vice and her overall marks for proficiency and conduct were 3.9 and 3.9. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB determined her command treated her very equitably and gave her multiple opportunities to correct her poor behavior and further determined the General characterization of service was proper and very fair. 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

Similar Decisions

USMC | DRB | 2014_Marine | MD1400276

Original file (MD1400276.rtf) Auto-classification: Denied

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. ” Additional Reviews : After a document review has been conducted, former members are...
USMC | DRB | 2006_Marine | MD0600993

Original file (MD0600993.rtf) Auto-classification: Denied

ex-, USMC MD06-00993Current Discharge and Applicant’s Request: Application Received: 20060718Characterization of Service: Narrative Reason for Separation: misconduct-pattern of misconduct (ADMINISTRATIVE DISCHARGE BOARD REQUIRED BUT WAIVED)Discharge Authority: MARCORSEPMAN 6210.3Last Duty Assignment/Command at Discharge: HQSVCBN FMFPAC CAMp SMitH HIApplicant’s Request: Characterization change to: Narrative Reason change to: Review Requested: Representation: Decision: Date of...
USMC | DRB | 2015_Marine | MD1401672

Original file (MD1401672.rtf) Auto-classification: Denied

Based on the offense(s) committed by the Applicant, and after a General Court-Martial Convening Authority review, the Applicant was punitively discharged from the service with a Bad Conduct Discharge. 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 remain BAD CONDUCT DISCHARGE and the narrative reason for separation shall...
NAVY | DRB | 2012_Navy | ND1201322

Original file (ND1201322.rtf) Auto-classification: Denied

If the commanding officer determines the urinalysis was conducted properly and without administrative errors and the use was wrongful,then the member shall be processed for administrative separation.Based on being found guilty of violating UCMJ Article 112a at NJP, the NDRB determined the assigned Narrative Reason for Separation was proper and no other Narrative Reason for Separation more accurately describes why the Applicant was discharged. ” Additional Reviews : After a document review...
USMC | DRB | 2007_Marine | MD0700231

Original file (MD0700231.rtf) Auto-classification: Denied

Misconduct due to mental abuse from NCO2. After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct which precipitated the discharge.Athough not raised by the Applicant, the Board noted that the mental health recommendation for administrative separation due to a personality disorder did not unambiguously indicate...
NAVY | DRB | 2011_Navy | ND1101024

Original file (ND1101024.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.Applicant seeks a discharge upgrade to re-enlist in the U.S. Armed Forces.2. Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries and the administrative separationprocess, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain...
USMC | DRB | 2011_Marine | MD1100066

Original file (MD1100066.rtf) Auto-classification: Denied

Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. ” 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. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.
USMC | DRB | 2012_Marine | MD1200470

Original file (MD1200470.rtf) Auto-classification: Denied

Types of Documents Submitted/reviewedRelated 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/ToCongress member: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD...
USMC | DRB | 2015_Marine | MD1401662

Original file (MD1401662.rtf) Auto-classification: Denied

Types of Documents Submitted/reviewedRelated 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. Summary: After a...
USMC | DRB | 2009_Marine | MD0902089

Original file (MD0902089.rtf) Auto-classification: Denied

The Applicant believes her discharge was inequitable based on her record of service.Despite a Marine’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.After a thorough review of the Applicant’s service record, it appears to the NDRB that her command recommended that she be separated from the Marine Corps, but also recommended that the separation be suspended for 12 months. ”...

Search Decisions

Decision Text

USMC | DRB | 2013_Marine | MD1301270

Similar Decisions