ex-, USMC

Current Discharge and Applicant’s Request

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

Summary of Service

Prior Service:
Inactive:        USMCR (DEP)      20000218 - 20000223     Active: 

Period of Service Under Review:
Date of Current Enlistment: 20000224    Age at Enlistment:
Period of Enlistment: Years Months
Date of Discharge: 20040223     Highest Rank:
Length of Service: Year(s) Month(s) 30 Day(s)
Education Level:        AFQT: 39
MOS: 1833
Proficiency/Conduct Marks (# of occasions): /          Fitness Reports:

Awards and Decorations (per DD 214):     Rifle (2) (2) LoA

Periods of CONF:

NJP:

- 20001025:      Article (Absence without leave)
         Awarded: Suspended: (Vacated 20010308)

- 20010307:      Article (Failure to obey order or regulation)
         Awarded: Suspended:

- 20020429:      Article (Assault)
         Article 134 (General Article)
         Awarded: RESTR EPD Suspended: FOP

- 20030505:      Article (Disrespect toward superior commissioned officer)
         Article 112 (Drunk on duty)
         Awarded: RESTR Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling:

- 20010308:      For my recent NJP on 010307 which encompassed the violation of article(s) 92.




Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “none”

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:                  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 a change in his RE-Code to RE-1.
2.       The Applicant contends his proficiency and conduct marks at the time of his separation rated the Honorable discharge he was issued on the 215 he was issued the day after his completion of his required active service.
3.       The Applicant contends the downgrade of his discharge characterization by the Marine Corps Manpower Management Support Branch (MMSB) was improper as there was not any factual basis in his service record to base the downgrade.
4.       The Applicant contends his in-service conduct warrants an upgrade to Honorable.

Decision


Date: 20141030           Location: Washington D.C.        Representation:

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall .
By a vote of the Reenlistment Code 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 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 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 and for of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, one specification), Article 89 (Disrespect toward superior commissioned officer, one specification) , Article 92 (Failure to obey order or regulation, one specification) , Article 112 (Drunk on duty, one specification), and Article 128 (Assault, one specification). Based on the completion of his required service the Applicant was discharged from active duty. The Applicant’s service record indicates he began his terminal leave on 9 January 2004 for a period of 45 days. The record further indicates that the Applicant’s terminal leave also included Combat Leave due to the Applicant’s recently returning from Operation IRAQI FREEDOM. The Applicant was originally issued and signed his DD Form 214 on 23 February 2004, one day after his completion of required active service. This document listed his discharge characterization as GENERAL (UNDER HONORABLE CONDITIONS). The following day a DD Form 215 correcting six administrative errors, including changing the Applicant’s discharge characterization to HONORABLE, was issued and signed by the same Battalion Personnel Officer that issued his original DD Form 214. The record shows the Applicant maintained an HONORABLE discharge characterization until he corresponded with Headquarters, United States Marine Corps, Manpower Management Support Branch (MMSB) requesting awards verification and updates from his combat deployment. On 31 July 2013 MMSB provided the Applicant with a naval letter documenting the additional awards he earned while on his last deployment and on 23 August 2013, and a new DD Form 215 documenting only these additional awards. On 25 October 2013 MMSB reissued the Applicant’s DD Form 214 and provided a Naval letter explaining that his originally issued DD Form 214 and 215 were found to be in error and that his discharge characterization was GENERAL (UNDER HONORABLE CONDITIONS). He was directed to this board to appeal this discharge characterization.

: (Nondecisional) The Applicant seeks a change in his RE-Code to RE-1. 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.


: (Decisional) () . The Applicant contends his proficiency and conduct marks at the time of his separation rated the Honorable discharge as issued on the 215 he was issued the day after his completion of his required active service. 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 was issued a DD Form 215 stating his service was Honorable two days after the completion of his active service requirement. This board reviewed the Applicant’s service record in detail and made multiple requests to obtain the Applicant’s final proficiency and conduct marks. All attempts to verify the Applicant’s proficiency and conduct marks from the Marine Corps failed. The NDRB considered the Applicant’s significant number of nonjudicial punishments along with their suspended portions of punishments as well as the evidence of the record showing he was promoted to Corporal with approximately three years of service with three of the nonjudicial punishments having already occurred. The NDRB noted that even after the Applicant’s fourth and final nonjudicial punishment, his command did not process him for separation but instead allowed him to continue his service through his final 10 months of service. Given his command’s lenient handling of his misconduct, the current non-availability of his proficiency and conduct marks, and the immediate issuance of the DD Form 215 by his Battalion Personnel Officer at a time when his proficiency and conduct marks would have reasonably been available, the NDRB determined, by majority vote, that the Applicant’s service proficiency and conduct marks were more likely than not sufficient for an HONORABLE characterization. Relief granted.

: (Decisional) () . The Applicant contends the downgrade of his discharge characterization by the Marine Corps Manpower Management Support Branch (MMSB) was improper as there was not any factual basis in his service record to base the downgrade. The NDRB strongly considered the significant number of nonjudicial punishments in the Applicant’s record, but also considered that he was often awarded suspended punishments from his nonjudicial punishment proceedings and Applicant’s rate of promotion. Overall, the NDRB agrees with the Applicant’s contention that his proficiency and conduct marks were more likely than not sufficient to rate an HONORABLE characterization and that the originally issued DD Form 215 was correct. Relief granted.

4: (Decisional) () . The Applicant contends his in-service conduct warrants an upgrade to Honorable. The government enjoys 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. In this case, the Applicant presented a through and well scripted argument based on both the evidence of record along with the essential documentation missing from his service record. While there is ample documentation of adjudicated misconduct in his record in the form of his nonjudicial punishments there is no evidence in the record to clearly illustrate that his overall proficiency and conduct marks at the time of his separation did not meet the criteria for an HONORABLE characterization based upon his promotion up to Corporal, the suspension of significant portions of his nonjudical punishment awards, and his command’s decision not to administratively separate him for any of his misconduct. Relief granted.

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 change to HONORABLE and the narrative reason for separation shall remain COMPLETION OF REQUIRED ACTIVE SERVICE.

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