ex-, USMC

Current Discharge and Applicant’s Request

Applicant’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: 19980814    Age at Enlistment:
Period of Enlistment: Years Months
Date of Discharge: 20030818     Highest Rank:
Length of Service:
Active: Year(s) Month(s) 03 Day(s)
Inactive: Year(s) Month(s) 08 Day(s)
Education Level:        AFQT: 84
MOS: 1345
Proficiency/Conduct Marks (# of occasions): () / ()   Fitness Reports:

Awards and Decorations (per DD 214):     Rifle

Periods of CONF:

NJP:

SCM:

SPCM:

CC:

Retention Warning Counseling:

- 20020203:      For drill attendance, specific recommendations for corrective action, assistance available, and advised that failure to take corrective action may result in administrative separation or judicial proceedings.

- 20020303:      For drill attendance, specific recommendations for corrective action, assistance available, and advised that failure to take corrective action may result in administrative separation or judicial proceedings.

- 20020505:      For drill attendance, specific recommendations for corrective action, assistance available, and advised that failure to take corrective action may result in administrative separation or judicial proceedings.

- 20030112:      For drill attendance, specific recommendations for corrective action, assistance available, and advised that failure to take corrective action may result in administrative separation or judicial proceedings.




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 1 September 2001 until Present.

B. Marine Corps Reserve Administrative Management Manual, MCO P1001R.1, Chapter 3, Reserve Participation and Administrative Procedures, paragraph 3300.

C. Table 61 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001, Guide for Characterization of Service.

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1.       The Applicant contends his discharge characterization is inequitable because his misconduct only consisted of one isolated issue in his service.
2.       The Applicant contends his discharge characterization was inequitable because his wife needed their only vehicle to report to work daily as an active duty Navy linguist.
3.       The Applicant contends his discharge characterization was inequitable because his family relocated outside of a reasonable commuting distance from his reserve unit as a result of his wife’s active duty status.

Decision


Date: 20150205           Location: Washington D.C.        Representation:

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 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 warnings and three Competency Review Board (CRB) proceedings that reduced him in rank from Corporal to Private. Based on the offense(s) committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant failed to respond to his notification of separation (NOS) thereby waiving his rights to consult with a qualified counsel, submit a written statement, and request an administrative board.

: (Decisional) () . The Applicant contends his discharge characterization is inequitable because his misconduct only consisted of one isolated issue in his service. 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. There is credible evidence in the record to suggest the Applicant missed in excess of 20 drill days in the Marine Corps Reserve. The Deputy Legal Officer, Headquarters, Fourth Marine Division, conducted a legal review of the Applicant’s administrative discharge package and stated the discharge was “Sufficient in law and fact. Unit documents in excess of 20 missed drills since Jan 03 and the commander’s endorsement of 6 Apr 03 indicates SNM continues to be in a bad drill status. The record also notes multiple unsuccessful efforts to return SNM to a satisfactory status including numerous phone calls, many unsat participation and CRB letters, and SRB counselling by those throughout his chain of command. SNM moved to California without a forwarding address and failed to respond to NOS.” 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.

2 & 3: (Decisional) () . The Applicant contends his discharge characterization was inequitable because his wife needed their only vehicle to report to work daily as an active duty Navy linguist. The Applicant further contends his discharge characterization was inequitable because his family relocated outside of a reasonable commuting distance from his assigned reserve unit as a result of his wife’s active duty status. The NDRB noted that the Applicant’s spouse, while on active duty, deployed in support of combat operations as documented by her DD Form 214. The NDRB found the Applicant’s argument that due to their possession of only one vehicle he could not report to scheduled drill periods as implausible given that his spouse would not have deployed with their sole vehicle. Even had this not been the case, the Applicant committed to participation in the Ready Reserve and was obligated to continue to drill at his assigned unit, maintain his current contact information with his current unit, and, if necessary, take the required actions coordinate a transfer to a reserve unit that was closer current to his place of residence while maintaining good standing with his current unit until the transfer was completed. The Commanding Officer, Headquarters and Service Company, Fourth Combat Engineer Battalion, Forth Marine Division , documents that the Applicant “…had a history of poor drill attendance when he lived in the vicinity of the[Reserve Training Center] RTC. He was counseled on and signed a page 11 entry more than a year ago. He has subsequently moved to California making his continued participation in the SMCR with this unit highly improbable. Attempts to contact him in CA have been unsuccessful.” During the separation proceedings, the Applicant failed to respond to his notification of separation thereby waiving his right to consult with counsel, request a hearing before an Administrative Separation Board, and submit a rebuttal to the separation. 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. The NDRB found the Applicant’s discharge to be consistent with those given to others with similar offenses and found his claim to be without merit. 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 remain UNDER OTHER THAN HONORABLE CONDITIONS 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