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USMC | DRB | 2014_Marine | MD1400016

Original file (MD1400016.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20130925

Characterization of Service Received:

Narrative Reason for Discharge: NON-RETENTION ON ACTIVE DUTY

Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to:

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       20030723 - 20040531     Active: USMC      20040601 - 20080502

Period of Service Under Review:
Date of Current Enlistment: 20080503     Age at Enlistment:
Period of E nlistment : Years 9 Months ; 1 Month Extension
Date of Discharge: 20110302      H ighest Rank:
Length of Service : Y ea rs M on ths 00 D a ys
Education Level:        AFQT: 53
MOS: 0612
Proficiency/Conduct M arks (# of occasions): /         Fitness R eports:

Awards and Decorations (per DD 214):      Rifle (2) (2) (3) CoC

Periods of UA / CONF :

NJP:

- 20090202 :       Article (Failure to obey order or regulation; did, on or about 27 January 2009, exceed the speed limit while driving a government vehicle; the onboard GPS recorded a max speed of 91 mph and recorded over 90 instances of the vehicle exceeding 75 mph )
         Awarded: Suspended:

- 20110211 :      Article 108 (Military property - loss, damage, destruction, disposition; did, through neglect, lose multiple issued gear of a value of $1760.50)
         Awarded: Suspended:

SCM:    SPCM:          CC:

Retention Warning Counseling :

- 20090130 :       For violation of UCMJ Article 92; see NJP dated 20090202

- 20110211 :       For violation of UCMJ Article 108; see NJP dated 20110211

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative errors on the original DD Form 214:

         “ NON-RETENTION ON ACTIVE DUTY ”

The NDRB will recommend to the Commandant of the Marine Corps , MMSB-13, that the DD 214 be corrected as appropriate.

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 a change in his discharge characterization from “Under Honorable Conditions” to “ Honorable. ”
2.       The Applicant seeks a change in his reentry (RE) code from RE-4 to RE-1A.
3 .       The Applicant contends the S eparation C ode on his DD Form 215 is inequitable b ased on his in-service conduct and requests it be changed from JGH2 to MBK1.

Decision

Date : 20 1 4 0410          Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall NON-RETENTION ON ACTIVE DUTY

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 sta ndards of equity and propriety. The Applicant’s record of service in his current enlistment included 6105 counseling warnings and nonjudicial punishments (NJPs) for o f the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey orde r or regulation) and Article 108 ( Military property - loss, damage, destruction, disposition). The Applicant was not recommended for retention and was involuntarily discharged at the end of his obligated service with an Honorable characterization of service .

: (Nondecisional) The Applicant seeks a change in his discharge characterization from “Under Honorable Conditions” to “ Honorable. ” The Applicant received an Honorable characterization of service upon. Available records indicate t he Applicant’s current characterization of service is Honorable as evidenced by his DD Form 214 of 02 March 2011 an d DD Form 215 of 9 March 2011. The confusion may likely have arisen from the Department of Veterans Affairs, who describes Honorable service as being “under honorable conditions.” Nowhere is there any indication that the Applicant received anything other than an Honorable discharge.

: (Nondecisional) The Applicant seeks a change in his reentry (RE) code from RE-4 to RE-1A. 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 B oard for Correction of Naval Records 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. The Applicant’s amended RE code to RE-4 does seem proper, however, as the Applicant was not recommended for retention or reenlistment.

: (Decisional) ( ) . The Applicant contends the S eparation C ode on his DD Form 215 is inequitable based on his in-service conduct and requests it be changed from JGH2 to MBK1. The Applicant received an Honorable characterization of service for his first enlistment from June 2004 to May 2008. Each period of enlistment is an independent obligation and characterization is determined for that specific period of time. During his second enlistment, he received two retention warnings and was found guilty of violating UCMJ Articles 92 and 108 at two NJPs. With this misconduct, he met the requirements to be administratively separated for Misconduct (Serious Offense) and Misconduct (Pattern of Misconduct). However, his command determined that he was still fit to serve and allowed him to continue serving until the end of his second enlistment. In fact, his command approved an extension of his second enlistment so that the Applicant could await the decision from Headquarters Marine Corps (HQMC) on the Applicant’s request to reenlist. When the Applicant’s request was denied, the Applicant’s command processed him for separation at the end of his obligated service.

In accordance with Paragraph 1004 of 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, his overall marks for proficiency and conduct were not found in his record. His command, however, awarded him an Honorable characterization of service , and so the NDRB presume d his Proficiency and Conduct marks met the acceptable levels.

However, due to the Applicant’s misconduct during his second enlistment, the Applicant’s command did not recommend him for retention , and HQMC did not approve his request to reenlist. As a result, in accordance with MARCORSEPMAN Paragraph 1005 and Appendix A, t he Applicant was involuntarily discharged at the end of his active obligated service and was correctly assigned the Separation Code JGH2 . S eparation C ode MBK1 is only appropriate for voluntary release or transfer to another service component.

While researching the Applicant’s case, the NDRB identified an additional error on the Applicant’s DD Form 21 4 . Per Appendix A of the MARCORSEPMAN, Block 28 (Narrative Reason for Separation) should read “NON-RETENTION ON ACTIVE DUTY” and not “COMPLETION OF REQUIRED ACTIVE SERVICE.” The NDRB will forward a request to the Commandant of the Marine Corps, MMSB-13, to make the appropriate change , which should result in an issuance of a completely new DD Form 214 with NON-RETENTION ON ACTIVE DUTY, JGH2, and RE-4 on it. 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 N arrative R eason for S eparation shall remain NON-RETENTI O N ON ACTIVE DUTY . 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 | 2014_Marine | MD1400016

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