Search Decisions

Decision Text

USMC | DRB | 2006_Marine | MD0600180
Original file (MD0600180.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-Pvt, USMC
Docket No. MD06-00180

Applicant ’s Request
The application for discharge review was received on 20051101 . The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions) . The Applicant requests a documentary record discharge review. The Applicant designated the American Legion as the representative on the DD Form 293 .
Decision

A documentary discharge review was conducted in Washington, D.C. on 20060915 . After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant ’s service was discovered by the NDRB. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain as a bad conduct discharge by reason of court-marital.

PART I -

APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant ’s issues, as stated on the application :

“ I believe that I have learned my lesson. I regret the decisions that I made that caused me to receive the discharge that I got. I’ve completed counseling & drug classes to help me with the problem I had. My discharge has had a great effect on me getting a good job & on my resume. Not only did I let myself down with the choices I made but also the Corp. ”
Additional issues submitted by Applicant ’s representative ( American Legion ):
“Equity Issue: Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174D, Part IV, Paragraph 403 m (7), as it pertains to post-service conduct, in assessing the merits of this application.


In accordance with Title 32, CFR, section 724.116 and SECNAVINST 5420.174D, Part I, Paragraph 1.20, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue(s) and following statement in supplement to this Applicant’s petition.

Our review of the service record reveals that this former member earned the RSB. He was awarded the Good Conduct Medal on 20010405. Following due process notifications, he received a Bad Conduct discharged due to misconduct as authorized by MARCORSEPMAN, Paragraph 6210.5.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because his exemplary service. He has not submitted any additional documentation for consideration.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised. To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by Title 10, USC, Section 1553, and set forth in Title 32, CFR, Part 724 and SECNAVINST 5420.174D.

This case is now respectfully submitted for deliberation and disposition. ”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant ’s DD Form 214 (2)
E-mail from National Personnel Records Center, dtd August 15, 2005 (2 pages)
 Standard Form 180
Job verification from American Pacesetters, dtd October 5, 2005
Certificate of Achievement for successfully completing three month residency at Transitional Living Communities
Prelicensure Education Certificate, dtd May 10, 2005
 Certificate of Achievement for successfully completing relapse prevention at Transitional Living Communities
Certificate of Achievement for successfully completing big book study at Transitional Living Communities
Certificate of completion of the Cognitive Intervention Youthful Offender Program, dtd January 27, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19980415 - 19980510       COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 19980511              Date of Discharge: 20020805

Length of Service (years, months, days):

 Active: 04 02 25 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 1 3 day s
         Confinement:              36 day s

Age at Entry: 1 9

Years Contracted: 4
Education Level: 12                                 AFQT: 54

Highest Rank: LCpl                                   MOS: 2311

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (3 )                                 Conduct: 4.4 ( 3 )
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Rifle Sharpshooter Badge


Character, Narrative Reason, and Authority of Discharge (at time of issuance):

 BAD CONDUCT DISCHARGE/COURT-MARTIAL, authority: MARCORSEPMAN Par. 1105.

 Chronological Listing of Significant Service Events :

980330 :  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs .

980415:  Pre-service waiver for moral granted.
000301:  NJP for violation of UCMJ, Article 107: Did at Ammo Co, 1 st SupBn, 1 st FSSG, with the intent to deceive, made a false official statement, “I am not a Marine,” to Cpl M_.
         Award: Forfeiture of 7 days pay (Total Forf $ 273. 00 ), restriction and extra duty for 14 days . Extra duty suspended for 6 months . Not appealed.
000314:  Counseled for deficiencies in performance and conduct. [Provided a false official statement to a NCO. Further infractions will no t be tolerated.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

 000323:  Counseled for deficiencies in performance and conduct. ( Unauthorized absences. Specifically: From 0930/000319 to 1000/000321 SNM was UA from is appointed place of duty which was Guard duty. Further infractions will not be tolerated. ) Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
000329:  Extra duty awarded at NJP on 000301 vacated.
000428:  NJP for violation of UCMJ, Article 92: At Ammo Co, 1 st SupBn, 1 st FSSG, 0620, 3 April 200 0 , knowingly failed to obey company BEQ Order 11103.1, dtd 4 Nov 1998, by having 3 unauthorized females in his room.
Violation of UCMJ, Article 86 : At Ammo Co, 1 st SupBn, 1 st FSSG, on or about 0615, 3 April 2000, fail to go at the time prescribed to P.T.
         Award: Forfeiture of 7 days pay (Total forf $273.00) , restriction for 14 days . Restriction suspended for 2 months. Not appealed.
000428:  Counseled for deficiencies in performance and conduct . [Failure to obey orders, and regulations. Specifically: On 3 Apr00 knowingly failed to obey company BEQ order 11103.1 by having 3 unauthorized females in room. Further infractions will not be tolerated.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

 000509:  Applicant to unauthorized absence at 1300 on 000509.

000522:  Applicant from unauthorized absence at 1630 on 000522 ( 13 days/surrendered).

 000601:  Counseling: Advised of deficiencies in performance and conduct (Illegal drug involvement, THC usage identified through urinalysis confirmed by Nav Drug Lab, San Diego, msg (312012Z May 00)., necessary corrective actions explained.

 000602 :  NJP for violation of UCMJ, Article 86 : UA 1300, 9 May 2000 to 1630, 27 May 2000 fr Ammo Co, 1 st SupBn, 1 st FSSG.
Violation of UCMJ, Article 134 : At Ammo Co, 1 st SupBn, 1 st FSSG, 2000, 12 May 2000, broke restriction.
         Award: Forfeiture of $ 1 00 .00 per month for 2 month s , restriction and extra duty for 30 days, reduction to E- 2 . Appeal ed 000627. Appeal denied.

000807:  Applicant found fit for separation.

 000815 :  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of August because of weight control/military appearance and financial irresponsibility.

000823 :  Special Court Martial
         Charge I: violation of the UCMJ, Article 112a:
         Specification: Did, on or abt 22 May 00, wrongfully use marijuana. Plea: Guilty. Finding: Guilty.
         Additional Charge I: Violation of Article 112a:
          Specification: Did, on or abt 5 Jun 00, wrongfully use marijuana. Plea: Guilty. Finding: Guilty.
         Sentence: Confinement for 90 days, forfeiture of $ 5 00 .00 per month for 3 month s , reduction to E-1, Bad Conduct discharge.
          CA 0 1 0405 : T he sentence approved and ordered executed, except for bad conduct discharge , but execution of that portion of the sentence adjudging all confinement in excess of 45 days is suspended for a period of six months.
         SA: see SSPCMO.
         
000823:  Applicant found fit for confinement.
000823 :  Joined Base Brig, Camp Pendleton, California , for confinement.
000901:  Applicant refused medical officer evaluation. Applicant signed VA treatment location statement.

 000928 :  From confinement. [Extracted from DD Form 214, Block 29.]

001006 :  Applicant to voluntary appellate leave.

 020418 :  NMCCCA: Affirmed findings and sentence.

020731 :  Appellate review complete.

 020805 :  SSPCMO: Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020805 with a bad conduct discharge which was the sentence adjudged by a properly convened special court-martial. That sentence was subsequently approved by both the convening and appellate review authorities (A and B). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the Applicant’s issues were insufficient to merit clemency (C).

In response to the Applicant’s issue, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. With respect to a discharge adjudged by a court-martial case, 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. After a thorough review of the Applicant’s record, issues submitted, and post service accomplishments, the Board determined that clemency was not warranted and that the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed. Relief denied.

The Applicant stated that he wants an upgrade to enhance his employment opportunities. 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. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the 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

Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURT-MARTIAL , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 01 September 2001 until Present.

B. 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 112a (use of drugs) .
C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 205(2), Jurisdictional Limitations Authority for Review of Discharges.

PART IV - INFORMATION FOR THE APPLICANT
If you believe that 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 Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive. You should read Enclosure (5) of the Directive 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 Directive 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil ” .
The names, and votes of the members of the 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

Similar Decisions

  • USMC | DRB | 2006_Marine | MD0600435

    Original file (MD0600435.rtf) Auto-classification: Denied

    As my punishment, I was sentenced to 60 days in the Military Brigg and was going to be discharged under “General/Under Honorable Conditions.” While incarcerated, my discharge was downgraded to “Bad Conduct” because of Marijuana residue that was found in my room.I believe that the discharge should upgraded due to the fact that it is based on two incidents from out of the latter part of my 4+ years of service. Findings : Guilty Sentence: Confinement for 45 days, Bad Conduct discharge. The...

  • NAVY | DRB | 2004 Marine | MD04-00574

    Original file (MD04-00574.rtf) Auto-classification: Denied

    The Applicant requests the characterization of service received at the time of discharge be changed to honorable. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.020313: Counseled regarding deficiencies, specifically, failure to adhere to rules and regulations (Applicant was UA from Early Crew at the ASP. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning...

  • USMC | DRB | 2000_Marine | MD00-00997

    Original file (MD00-00997.rtf) Auto-classification: Denied

    Documentation In addition to the service record, the following additional documentation, submitted by the applicant, was considered:Copy of DD Form 214 (2 copies) PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Active: None Inactive: USMCR(J) 920520 - 920915 COG Period of Service Under Review :Date of Enlistment: 920916 Date of Discharge: 960411 Length of Service (years, months, days):Active: 03 06 26 (Doesn't exclude lost or confinement...

  • NAVY | DRB | 2004 Marine | MD04-01322

    Original file (MD04-01322.rtf) Auto-classification: Denied

    MD04-01322 Applicant’s Request The application for discharge review was received on 20040818. PART I - APPLICANT’S ISSUES AND DOCUMENTATION 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, unauthorized absence for more than 30 days.

  • USMC | DRB | 2006_Marine | MD0600022

    Original file (MD0600022.rtf) Auto-classification: Denied

    Issues, as stated Applicant’s issues, as stated on the application:“Request upgrade of DD Form 214 discharge, “Character of Service”” After a thorough review of the Applicant’s record and issues submitted, the Board determined that clemency is not warranted. 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 112A Wrongful use, possession, etc.

  • USMC | DRB | 2001_Marine | MD01-00670

    Original file (MD01-00670.rtf) Auto-classification: Denied

    PART I - APPLICANT’S ISSUES AND DOCUMENTATION Sentence: Confinement for 60 days, Forfeiture of $639.00 pay per month for 2 months, and a bad conduct discharge. PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW Discussion The applicant was discharged on 000823 with a bad conduct discharge which was the sentence adjudged by a properly constituted special court martial that was determined to be legal and proper, affirmed in the legal chain of review and executed (A and B).

  • NAVY | DRB | 2004 Marine | MD04-00235

    Original file (MD04-00235.rtf) Auto-classification: Denied

    MD04-00235 Applicant’s Request The application for discharge review was received on 20031120. In June of 1998, I was given a Bad Conduct Discharge and afterwards spend 45 days in the Camp Pendleton Base Brig.I am requesting that the review board upgrade my discharge to an entry-level separation. At this time, the Applicant has not provided sufficient documentation for the Board to consider.The Applicantis reminded that he remains eligible for a personal appearance hearing, provided an...

  • USMC | DRB | 1999_Marine | MD99-00679

    Original file (MD99-00679.rtf) Auto-classification: Denied

    Documentation In addition to the service record, the following additional documentation, submitted by the applicant, was considered:Copy of DD Form 214 PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Active: USMC 831209 – 871208 HONActive: USMC 790627 - 831208 HON Inactive: USMCR(J) 781205 - 790626 COG Period of Service Under Review :Date of Enlistment: 871209 Date of Discharge: 890203 Length of Service (years, months, days):Active: 01 00...

  • USMC | DRB | 2005_Marine | MD0501493

    Original file (MD0501493.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). PART I - APPLICANT’S ISSUES AND DOCUMENTATION The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls well below that required for an upgrade in characterization of service.

  • USMC | DRB | 2003_Marine | MD03-00982

    Original file (MD03-00982.rtf) Auto-classification: Denied

    Discharge. Applicant)” Documentation In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:Copy of DD Form 214 (Member – 4 copy) Applicant’s Résumé CO, 1 st FSSG MARFORPAC, ltr to Applicant dtd May 30, 1997Applicant’s Voluntary Leave Awaiting Appellate Review acknowledgement ltr of Feb 3, 1997Copy of DD Form 214 (Member –1 copy) Applicant’s High School Diploma dtd June 7, 1991 Applicant’s Permission Statement of Dec 2, 2002 to...