Upgrade.Vet

USMC | DRB | 2014_Marine | MD1401261

Original file (MD1401261.rtf) Auto-classification: Denied

ex-PFC, USMCR

CURRENT DISCHARGE AND APPLICANT'S REQUEST

Application Received: 20140620
Characterization of Service Received: UNDER OT H ER TH AN HONORABLE CONDITIONS Narrative Reason for Discharge: FAILURE TO PARTICIPATE
Authority for Discharge: MARCORSEPMAN 6213 [FAILURE TO PARTICIPATE]

Applicant's Request: Characterization change to: HONORABLE Narrative Reason change to : NONE REQUESTED

SUMMARY OF SERVICE

Prior Service:
Inactive: NONE _Active: _NONE

Period of Service Under Review: Date of Current Enlistment: 20061005
Period of Enlistment: 8 Years 0 Months
Date of Discharge: 20091019
_Length _of _Service:

Age at Enlistment: 18

Highest Rank: LANCE CORPORAL

Inactive:
Active: Education Level: MOS: 0341
02 Year(s) 06 Month(s) 10 Day (s)
00 Year(s) 06 Month(s) 05 Day(s)
12

AFQT: 45

Proficiency/Conduct Marks (# of occasions): 4.2 (NFIR) /4.2 ( NFIR}
_Fitness _Reports: _{NOT APPLICABLE}

Awards and Decorations (per DO 214): Rifle SS NDSM Periods of CONF: NONE
NJP: NONE SCM: NONE SPCM: NONE CC: NONE Retention Warning Counseling : NONE

TYPES OF DOCUMENTS SUBMITTED/REVIEWED

Related to Military Service:
^00214:^[X]^{Service/Medical}^Record:^[X]^Other^Records:^[^]

Related to Post-Service Period: Employment: ^{[ ]}
_{Health/Medical} _Records: ^{[ ]}
_Personal _{Documentation:} ^{[ ]}
^Department ^of ^VA ^letter: ^{[ ]}
_Additional _Statements:

_Finances: ^{[ ]}
_{Rehabilitation/Treatment:} ^{[ ]}
_Community _Service: ^{[ ]}
^Other ^{Documentation:} ^{[ ]}

^{Education/Training:} ^{[ ]}
^Criminal ^Records: ^{[ ]}
^References: ^{[ ]}

From Applicant: ^{[ ]} ^From/To ^{Representation:} ^{[ ]} ^From/To ^Congress ^member: ^{[ ]}

^D^EPARTMENT^OF^THE^NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT

APPLICANT'S ISSUES

I. The Applicant seeks a change in his RE-code in order to reenlist into an active duty infantry battalion.
2. The Applicant contends his disciplinary problems were the result of a bad decision to stop drilling caused by family
matters.

DECISION

Date: 20141030 DOCUMENTARY REVIEW Location: WASHINGTON D.C. Representation: NONE

By a vote of 5-0 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS.
By a vote of 5-0 the Narrative Reason shall remain FAILURE TO PARTICIPATE.

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. I u reviewing discharges, the Board presumes regularity in the conduct of governmental affairs 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 his
discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety. The Applicant's record of service included no 6105 counseling warnings and no misconduct resulting in nonjudicial punishment or court-martial. However, the Applicant had a well-documented history of missing his required drill period s starting in May
2008. The record shows his command made numerous attempts to contact him and get return him to good standing to include physically visiting his residence and contacting his mother. The Applicant briefly returned to drill but terminated his affiliation with his unit as it was preparing for a deployment after telling his peers that he was not cut out for the Marine Corps , "this sucks, " an d "I don't want to do this" before going to his car, dumping all of his Marine Corps gear on the front door of the unit and departing the area. Based on the Applicants numerous absences and stated intention of not returning to drill or deploy, his command administratively processed him for separation. When notified of administrative separation processing using the administrative board procedure, the Applicant waived his rights to consult with a qualified counsel, submit a written statement, and request an administrative board.

Issue I: (Nondecisional) The Applicant seeks a change in his RE-code in order to reenlist into an active duty infantry battalion. 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.

Issue 2: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends his disciplinary problems were the result of a bad decision to stop drilling caused by family matters. 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 enlistment, such as the Navy Chaplain, Medical or Mental Health professionals, Navy Relief Society, Family Advocacy Programs, or even the Red Cross. While the Applicant may feel that his family difficulties 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. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant's summary of service, service record entries, and discharge process, the Board found the discharge was proper and equitable. Therefore, the awarded characterizatio n of service shall remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain F AI LURE TO PARTICIPATE.

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his discharge. The Applicant is directed to the Addendum for additional information .

Pertinent Regulation/Law

A. Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), 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 .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 86.

Drawn Shape (ignored-not implemented yet)

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 Disabled 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 | MD1401261

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