ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20091015
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MARCORSEPMAN 

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

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	20020724 - 20021217  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20021218	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20061220	Highest Rank:  
Length of Service:    Year(s)    Month(s)  03  Day(s)
Education Level:  	AFQT:  41
MOS:  0311
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle          

Periods of CONF:  

NJP:  

- 20060525:	Article  (UA 20060508-20060511, 3 days)
	Article 107 (False official statement), 2 specifications
	Specification 1: Stated he was in the hospital
	Specification 2: Father had died on 20060402 and has been unable to produce any documentation or proof of father’s death
	Awarded:     Suspended:  

SCM:  

SPCM:  

CC:  

Retention Warning Counseling:  

- 20031031:	For unauthorized absence.  SNM was 14 hours late at the end of a 96 formation.

- 20060224:	For failing to meet height, weight, and body fat standards as per MCO P6100.12 Marine Corps Physical Fitness Test and Body Composition Program Manual.  Specifically, you are 19 pounds overweight and you have 25% body fat.  You do not meet the Physical Performance Evaluation due to failed PFT, taken on 20051012.

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.	Nondecisional issues: Applicant seeks an upgrade in order to be eligible for increased benefits from the Veterans Administration. 

2.	Decisional issues: (Propriety/Equity).  The Applicant contends that his characterization of service at discharge was inequitable as it was based on an isolated incident in what was otherwise 4 years of honorable service.  

Decision

Date:  20101118		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 Applicant provided no documentation for consideration in mitigation, extenuation, or to rebut any presumption of regularity in governmental affairs.  The Applicant identified one decisional issue for the NDRB’s consideration.  The Board completed a thorough review of the circumstances regarding his discharge, and the discharge process, to ensure that it met the pertinent standards of both equity and propriety.  The Applicant’s record of military service included two 6105 retention-counseling warnings and one nonjudicial punishment (NJP) for violations of the Uniform Code of Military Justice (UCMJ).  The Applicant’s violations include violation of Article 86 (Absent without leave, specifically – absenting himself from his unit without proper authority (3 days)) and Article 107 (False official statements).  Additionally, the Applicant’s record of service includes 2 combat deployments to Iraq in support of Operation IRAQI FREEDOM and operational deployments to Cuba and Djibouti.  The Applicant also received a Combat Action Ribbon for direct combat engagement in Iraq.

:  (Nondecisional):  The Applicant seeks an upgrade in his characterization of service in order to be eligible for increased benefits from the Veterans Administration.  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  There is neither a requirement nor law that grants re-characterization based solely on the issue of obtaining veterans benefits; this issue does not serve to provide a foundation upon which the Board can grant relief.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.

:  (Decisional) ()  .  The Applicant contends that his characterization of service at discharge was inequitable as it was based on an isolated incident in what was otherwise 4 years of honorable and faithful service.  Per the Marine Corps Separation and Retirement Manual, an Honorable characterization upon expiration of active service is appropriate when the quality of the Marine’s service has met the standards of accepted conduct and performance of duty for military personnel.  Therefore, characterization 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 his overall marks for proficiency and conduct were 4.1 and 3.9, respectively – warranting the lesser characterization of service of General (Under Honorable Conditions).  

In a review of the Applicant’s assigned proficiency and conduct markings, the NDRB determined that the Applicant’s proficiency and conduct marking s were improperly assigned.  The Applicant was reduced in rank and received appropriate reduction marks of 3.0/3.0.  Less than 90 days later, he erroneously received Semi-Annual evaluation markings of 3.8/2.5; in accordance with paragraph 4500, table 4.3 of Marine Corps Order P1070.12k W/Ch 1 (Marine Corps Individual Records Administration Manuel (IRAM)), these markings should have been listed as “N/A.”  

Furthermore, the Applicant’s TR marks at separation - which followed the NJP and the above discussed semi-annual markings - were improperly recorded as 3.8/2.5.  In accordance with the IRAM, proficiency and conduct markings should represent a fair and objective evaluation of the Marine’s conduct for the marking period; an NJP that previously awarded reduction marks does not carry forward.  Commanders are to base the new period’s evaluation markings on the performance and conduct in the current grade.  Additionally, the assignment of any conduct markings below 4.0, for any reason other than court-martial or reduction at NJP, requires documentation in the service member’s service record book.  The Applicant’s service record contains no documentation regarding his conduct that would warrant these very low marks.

After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned an impropriety in the discharge action.  Without the erroneous and improper proficiency and conduct marks, the Applicant’s overall in-service proficiency and conduct markings exceeds that which is required for the assignment of an Honorable characterization of service.  Based on a re-computation of the Applicant’s proficiency and conduct marks, coupled with his combat service to the nation, the NDRB discerned an inequity in the characterization of the Applicant’s service.  The Board voted unanimously to upgrade the characterization of the discharge to HONORABLE.  Relief warranted.  

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 COMPLETION OF REQUIRED ACTIVE SERVICE.

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), 2 Navy Annex, Washington, DC 20370-5100 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