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USMC | DRB | 2015_Marine | MD1401155
Original file (MD1401155.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20140724
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Ap plicant’s Request:      Characterization change to:
         Narrative Reason change to:
        

Summary of Service

Prior Service:
 Inactive:         NONE              Active:  

Period of Service Under Review:
 Date of Current Enlistment: 19950718     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19990511      H ighest Rank:
Length of Service :
Inactive: Year(s) Month(s) 15 D ay(s)
 Active: Y ea r ( s ) M on th ( s ) 07 D a y ( s )
Education Level:        AFQT: 76
MOS: 3521
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations (per DD 214):     AFRM SMCRM

Periods of CONF :

NJP: SCM: SPCM: CC:

Retention Warning Counseling:

- 19990109 :      For drill participation, duties and responsibilities, SNM currently has 21 Unauthorized Absences (UA) from drill for the period of 19980307 to 19980913. MCO P1001R.1 (MCRAMM) states that UAs from drill in excess of nine (9) provides for grounds for the Commanding Officer to initiate separation proceedings . SNM has been afforded the opportunity to provide dates to make up the UAs as of this date. SNM has been counseled that failure to provide dates and physically attend those dates will result in separation proceedings being initiated by the Commanding Officer.


NDRB Documentary Review Conducted (date):        20030515
NDRB Documentary Review Docket Number:   MD02-01131
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.








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. Paragraph 6213 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective
18 August 1995 until 31 August 2001.

B. Marine Corps Reserve Administrative Management Manual, MCO P1001R.1, Chapter 3, Reserve Participation and Administrative Procedures, paragraph 300.

C. Table 6-1 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 August 1995, Guide for Characterization of Service.
D . 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 obtain a security clearance and enhance employment opportunities in the field of cybersecurity.
2. The Applicant contends that aside from the alleged absences during his reserve service, he has never been accused of misconduct both personally and professionally.
3. The Applicant contends that his discharge was improper because he never consulted with counsel about his separation from the USMC, which he would not have waived his separation board had he known that he had this right.
4. The Applicant contends that he did not understand the nature and gravity of the proceedings against him due to his relative inexperience with the military.
5. The Applicant contends that his post service conduct is worthy of consideration since his current record of service mischaracterizes his current ability to perform along with his future potential in that he is a trustworthy and reliable citizen, which he has excelled by improving himself through (self-funded) education, obtaining a baccalaureate degree, MBA, MS, and working toward his PhD (currently all but dissertation).

Decision


 Date: 20 1 50410            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 warning . Based on the Applicant ’s failure to participate , due to unexcused absences , command administratively processed for separation. When notified of a dministrative separation processing using the procedure, the Applicant rights to consult with a qualified counsel, submit a written statement, and request an administrative board .

: (Nondecisional) The Applicant seeks an upgrade to obtain a security clearance and enhance employment opportunities in the field of cybersecurity. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

: (Decisional) ( ) . The Applicant contends that aside from the alleged absences during his reserve service, he has never been accused of misconduct both personally and professionally. An Under Other Than Honorable Conditions discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. The Applicant had 21 unauthorized absences from drill in the Marine Corps Reserve. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Marine Corps. Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service. Relief denied.

: (Decisional) ( ) . The Applicant contends that his discharge was improper because he never consulted with counsel about his separation from the USMC, which he would not have waived his separation board had he known that he had this right. During the separation proceedings, the Applicant waived his right to consult with counsel and request a hearing before an Administrative Separation Board . The Applicant elected to submit a rebuttal, but did not provide his statement to his command with the separation package. If the Applicant believed there were mitigating circumstances, it was his obligation to contest those charges at the time they were made. During an Administrative Separation Board, he would have had the opportunity to mount a defense against the charges. At his hearing with the NDRB , t he Applicant submitted no evidence to support his contention that his discharge was improper; therefore, the NDRB relied upon the presumption of regularity in the conduct of government affairs. T he record clearly shows that the Applicant’ s command made numerous attempts to contact him and offer make ups for drill. The makes ups were scheduled, but the Applicant failed to appear. The Applicant stated to his platoon commander that he would not make up his drill and would accept the discharge. As such, the NDRB determined that this issue was without merit and does not provide a foundation upon which the NDRB can grant relief. Relief denied.

Issue 4 : (Decisional) ( ) . The Applicant contends that he did not understand the nature and gravity of the proceedings against him due to his relative inexperience with the military. The Applicant was counseled by his command that accepting an Under Other Than Honorable Conditions discharge could damage his present and future career. Despite the counseling, he told his command that he would accept the discharge. The Applicant had his opportunity to contest the separation when he was notified, but he waived his right to consult with counsel and request a hearing before an Administrative Separation Board . The Applicant elected to submit a rebuttal, but did not provide his statement to his command with the separation package. The record clearly reflects his willful failure to participate demonstrating he was unfit for further service. The evidence of record does not demonstrate the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. The record contained no evidence of any wrongdoing by the Applicant’s commanding officer or anyone else in the discharge process. The NDRB presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. The NDRB discerned no impropriety or inequity and determined the Applicant’s discharge was proper and equitable. The Applicant’s statements alone, without sufficient documentary evidence, are not enough for the NDRB to form a basis of relief. Relief denied.

Issue 5 : (Decisional) ( ) . The Applicant contends that his post service conduct is worthy of consideration since his current record of service mischaracterizes his current ability to perform along with his future potential in that he is a trustworthy and reliable citizen, which he has excelled by improving himself through (self-funded) education, obtaining a baccalaureate degree, MBA, MS, and working toward his PhD (currently all but dissertation). 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 revie w. The Applicant provided collegiate transcripts, evidence of employment, and t welve character references. 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. To warrant an upgrade, the Applicant’s post-service efforts need to be more encompassing. The 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 and his failure to participate . 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 is not eligible for further reviews by the NDRB. The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm. 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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