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USMC | DRB | 2013_Marine | MD1301750

Original file (MD1301750.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20130823

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)       19991103 - 20000123     Active:

Period of Service Under Review:
Date of Current Enlistment: 20000124     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20040131      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 08 D a y ( s )
Education Level:        AFQT: 58
MOS: 0231
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle JMUA

NJP:

- 20010322 :      Article (Absence without leave; did on or about 20010302, at approximately 1300, UA, SNM was instructed to report to the S-2 upon completion of school that day )
         Article (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer ; did at or about 20010306 at approximately 0655, disobey ed a lawful order and was disrespect ful toward a n on c ommissioned o fficer)
         Article (Failure to obey order or regulation; did on or about 20010302, disobey an order to wit, SNM was told to repeatedly return to the S-2 upon completion of school on that day )
         Article (Check, worthless, making and uttering by dishonorably failing to maintain funds; did on or about 20010309, bounced a check to Navy Federal Credit Union in an amount in the excess of $400.00 )
         Awarded: Suspended:

- 20010 7 03 :      Article (Absence without leave, 4 specifications )
         Specification 1: On or about 20010524, at approximately 0645, was UA until 0720 on 20010524 when he returned
         Specification 2: On or about 20010527, was UA from his appointed place of duty, 2 minutes late
         Specification 3: On or about 20010530, UA from his appointed place of duty, 6 minutes late
         Specification 4: On or about 20010618, UA from his appointed place of duty, SNM was to report for section PT at 0615
         Article (Failure to obey order or regulation; on or about 20010527, failed to obey order or regulation to wit; to shave prior to going to work)
         Awarded: Suspended:

SCM:     CC:

SPCM:

- 20030730 :      Article (Failure to obey order or regulation)
         Sentence :

Retention Warning Counseling:

- 20000822 :      For poor judgment, lack of discipline, lack of military bearing, and substandard performance as a Marine.

- 20010319 :      For failure to comply with the UCMJ, continued tardiness, failure to obey superiors , and over all lack of professional conduct.

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:                  Other Documentation:
                  Additional Statements:
         From Applicant:          From/To Representation:          From/To Congress member:

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 G.I. Bill benefits.
2.       The Applicant contends h e saved the lives of 7 servicemembers and was an exemplary Marine who was racially mistreated by his chain of command.

Decision

Date: 20 1 4 0 227          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 standards of equity and propriety. The Applicant’s record of service included 6105 counseling warnings, for o f the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave , 5 specifications) , Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer , 1 specification ), Article 92 (Failure to obey order or regulation , 2 specifications ), Article 134 (Check, worthless, making an uttering by dishonorably failing to maintain funds , 1 specification ) , and for of the UCMJ: Article 92 ( Failure to obey order or regulation , 1 specification ). Despite significant misconduct, his command allowed him to continue to serve until the end of his active obligated service, when he was discharged with a General (Under Honorable Conditions) characterization of service for Completion of Required Active Service.

: (Nondecisional) The Applicant seeks an upgrade to qualify for G.I. Bill benefits. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge. 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 h e saved the lives of 7 servicemembers and was an exemplary Marine. During the Applicant’s enlistment, he received two retention warnings and was found guilty of multiple UCMJ violations at two NJPs and a Special Court-Martial. Despite misconduct that typically would have resulted in a punitive Bad Conduct Discharge from the Special Court-Martial or an Under Other Than Honorable Conditions discharge for Misconduct (Serious Offense) or Misconduct (Pattern of Misconduct), his command allowed him to continue to serve until the end of his required active service. In accordance with P aragraph 1004 the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) , 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 , however, a complete listing of his overall marks for P roficiency and Conduct were not found in his service record. Taking into consideration the marks that are in his record and his multiple instances of misconduct, the NDRB presumed that he did not meet the minimum requirements to warrant an Honorable characterization of service at the end of his enlistment and presumed that his command properly assigned a General (Under Honorable Conditions) characterization of service per the MARCORSEPMAN. Relief denied.

: (Decisional) ( ) . The Applicant contends he was racially mistreated by his chain of command. The government assumes 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 his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that the command treated him unfairly. Quite to the contrary, the Applicant ’s service record ha s documented evidence of misconduct that could have led to an administrative discharge resulting in an unfavorable characterization of discharge or, at a maximum, a punitive discharge. The command did not pursue a punitive discharge but opted instead for the more lenient course of action and allowed the A pplicant to continue his service to the completio n o f his enlistment contract. Relief denied .

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, and record entries, 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 | MD1301750

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