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USMC | DRB | 2006_Marine | MD0600829
Original file (MD0600829.rtf) Auto-classification: Denied
ex-, USMC
MD06-00829

Current Discharge and Applicant’s Request
Application Received: 20060526   Characterization Received:
Narrative Reason: COURT MARTIAL                   Authority: MARCORSEPMAN 1105

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to: SECRETARIAL AUTHORITY
Applicant’s Issues (as summarized by NDRB) :                                 Representative: AMERICAN LEGION  
1. Desire to re-enlist
2. Should have received hardship discharge
 3 . Post-service conduct


Decision

 Pending results of hearing.
 By a vote of the Characterization shall .     
By a vote of the Narrative Reason shall COURT MARTIAL .
Date: 20 070829                                       Location: Washington D.C.

Discussion

Issue 1: either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum regarding .

Issue 2 : Relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. While the Applicant styled his issues as equity issues, w ith 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. The NDRB noted that the Applicant’s bad conduct discharge, received at court-martial, had been previously remitted by the Naval Clemency and Parole Board (NCPB) , and r ecognized that the NDRB’s review was based on the characterization of service that the Applicant actually received. The Board noted that the Applicant’s stated reason for going UA was that his girlfriend in Texas, the mother of his son, told him the day before having to report to School of Infantry (SOI) in California, that her father, who unbeknownst to the Applicant was being deported, intended to go El Salvador taking his daughter and grandson with him with no intention of returning. The Applicant reported to SOI on about Tuesday, 20020115. Later that day his girlfriend told him over the phone that she, the child, and her mother and father would be departing that coming Friday. The Applicant, without requesting further assistance from his chain of command, decided that he needed to return to Texas in order to keep his son from leaving the country. While recognizing the difficult circumstances the Applicant found himself in, the NDRB noted that the day after his return to Texas, his girlfriend’s parents did depart, leaving his girlfriend and son behind. Two weeks later, the Applicant married his girlfriend. Thus, the Applicant’s reason for going UA was resolved , probably within a few days of going UA, and definitely within two weeks ; however, the Applicant made no effort to return to his unit for another month. Even then, having traveled all the way to San Diego, he decided to return to Texas and continue his UA status when told by phone of the possible adverse consequences of his behavior. After a thorough review of the Applicant’s record, issues submitted, and post service accomplishments, the Boa rd determined that clemency was not warranted and that characterization of the Applicant’s service as under other than honorable conditions was appropriate . The NDRB further determined that an upgrade of the characterization was not warranted whether reviewed as a matter of clemency or an issue of equity.

Issue 2: There is no law or regulation which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct which precipitated the discharge.

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries , Discharge Process and evidence submitted by the Applicant, t he Board found that


Summary of Service

Prior Service:
 Inactive: USMCR (DEP)     20000711 - 20010924              Active:         
Period of Service Under Review:
 Date of Enlistment: 20010925      Years Contracted : ; Extension:                   Date of Discharge: 20041207
Length of Service : 03 Yrs 02 Mths 13 D ys          Lost Time : Days UA: 126  Days Confine d /IHCA : 30
Education Level:         Age at Enlistment:       AFQT: 42          MOS: 9971 Highest Rank:
Proficiency/Conduct marks (# of occasions):      1.8 ( * ) / 1.5 ( * )     Fitness reports :
Awards and Decorations ( per DD 214): RIFLE MARKSMAN BADGE, NATIONAL DEFENSE SERVICE MEDAL

*Not indicated in record

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

 20020116:        Applicant to unauthorized absence at 1600.

20020522:        Applicant from unauthorized absence at 1455 on 020522 (126 days/apprehended). IHCA until 20020525.

 20 020525:        Pre-trial confinement from 020525-020617.

Discharge Process

 Charge(s) and Specification(s): Article 86 , Absence without leave 20020116 - 20020522, terminated by apprehension
Preferred: 20020531 SPCM : 20020618        Findings: Guilty, Article(s) 86          Sentence: BCD; Conf 30 DAYS ; RIR E-1 ; CA action: 20030108         NC&PB Action: 200402 04 , BCD REMITTED      Appellate Review Complete: 2004 1018       SSPCMCO No. 04-1858 , 20041109 SEPARATED UNDER OTHER THAN HONORABLE CONDITIONS
Applicant Discharged: 20041207

20060413:        NDRB documentary record review Docket Number MD05-01312 conducted. Determination: Clemency not warranted.

Types of Documents Submitted by Applicant and Considered By Board

 Related to Military Service:      Service and/or Medical Record:            Other Records:

Related to Post-Service Period:         
         Employment:                        Finances:                          Education:               
         Health/Medical Records:                   Substance Abuse:                           Criminal Records:       
         Family/Personal Status:                   Community Service:                References:              
        
Additional Statements From Applicant:    From Representative:              Other Documentation (Describe)
- Letter from J. M. P_, Lead Congressional Liaison Representative, Office of Legislative Affairs, Correspondence, dtd September 30, 2005 (2 pgs)
-Letter from R_ B_, Constituent Services Representative
 -Applicant letter to Representative T_ D_
-Letter from Representative T_ D_, Member of Congress
-Applicant letter to President of the United States
-Letter from M_ A. M_, Special Assistant to the President and Director of Presidential Correspondence
-Houston Fire Department employment fact sheet

Pertinent Regulation/Law

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

 B. 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.

C. 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, Absence without leave (for more than 30 days) .

ADDENDUM: Information for the Applicant

 Complaint Procedures : 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 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 : Subsequent to a document review, former members are eligible for a personal appearance hearing, provi ded the 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. If a former member has been discharged for more than 15 years , has already been grante d a personal appearance hearing or has otherwise exhausted his 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 Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. 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.
Employmen t / Educational Opportunities : 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.

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 Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Additionally, the Board 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 subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, 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 “PTSD . ” Only the Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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. Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

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 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.

Board Membership: 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

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