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USMC | DRB | 2013_Marine | MD1301643
Original file (MD1301643.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20130815
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)       20021127 - 20030105     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20030106     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070105      H ighest Rank:
Length of Service : Y ea rs M on ths 00 D a ys
Education Level:        AFQT: 31
MOS: 0811
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (2) MM NDSM

Periods of UA / CONF :

NJP:

- 20041206 :       Article (Absence without leave , 2 specifications )
         Specification 1: F ailed to be at appointed place of duty, remedial PT; remained absent until 0620
         Specification 2: F ailed to be at appointed place of duty, remedial PT; remained absent until 0610
         Awarded: Suspended:

- 20050914 :      Article 113 (Misbehavior of sentinel or lookout, to wit: sleeping on post)
         Awarded: Suspended:

- 20060622 :      Article (Assault - Indecent; a married man, did , on or between October 2005 to November 2005, commit an indecent assault upon a woman not his wife by wrongfully having sexual intercourse)
         Awarded: Suspended:

- 20061109 :      Article 108 (Military property - loss, damage, destruction, disposition; did , on or about October 2006, without proper authority, through neglect, lose his issued military gear valued at $3683.30, military property of the United States)
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20041015 :       For failing to be at appointed place of duty on 21 September 2004.

- 20041103 :       For unsatisfactory progress while assigned to the Marine Corps Body Composition Program.

- 20041206 :       For violation of UCMJ Article 86; reference NJP dated 20041206.

- 20041221 :      For unsatisfactory progress while assigned to the Marine Corps Body Composition Program.

- 20061017 :      For failing to be at appointed place of duty on 5 October 2006.

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 would like to use Department of Veterans Affairs benefits.
2 .       The Applicant contends his discharge is inequitable based on his in-service conduct and performance.
3 .       The Applicant contends his General (Under Honorable Conditions) characterization was the result of retribution by his command.
4.       The Applicant contends his post-service conduct warrants consideration for an upgrade.

Decision

 Date: 20 1 4 0220            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, 2 specifications), Article 113 ( Misbehavior of sentinel or lookout), Article 134 ( Assault - Indecent ) , and Article 108 (Military property - loss, damage, destruction, disposition). The Applicant was discharged at the end of his obligated service with the characterization of General (Under Honorable Conditions).
Issue 1: (Nondecisional) The Applicant would like to use Department of Veterans Affairs 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. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.
: (Decisional) ( ) . The Applicant contends his discharge is inequitable based on his in-service conduct and performance. 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 higher. The Applicant completed his obligated service , and his overall marks for proficiency and conduct were 4.0 and 3.9, respectively. Therefore, a General (Under Honorable Conditions) characterization is proper and equitable. Relief denied.
: (Decisional) ( ) . The Applicant contends his General (Under Honorable Conditions) characterization was the result of retribution by his command. The Applicant contends that “ m y unit was mad at me , because they were trying to take my rank but could never do it , and I did not reenlist to go on deployment with them , and they wanted to try to hurt me once I left . ” Contrary to what the Applicant contends, a review of the record shows the Applicant’s command was unusually tolerant of his misconduct and very lenient in allowing him to continue his service until the end of his enlistment. With the Applicant’s five retention warnings and four NJPs, he met the requirements to be administratively separated for Misconduct (Serious Offense) and Misconduct (Pattern of Misconduct), which would likely have resulted in an Under Other Than Honorable Conditions characterization of service. However, his command allowed him to continue to serve until the end of his enlistment and receive a General characterization of service. The record contained no evidence of any wrongdoing by the Applicant’s commanding officer or anyone else in the discharge process. Relief denied.

Issue 4: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends his post-service conduct warrants consideration for an upgrade. 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, a pre-appointment letter as a Corrections Officer Trainee, certificates of training and achievement, and copies of various IDs. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum , however, 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. T he Board determined that the documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration. The characterization of service received was appropriate considering the length of service , UCMJ violations , and below-average Conduct marks . 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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