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USMC | DRB | 2006_Marine | MD0601072
Original file (MD0601072.rtf) Auto-classification: Denied

ex-, USMC
MD06-01072
Current Discharge and Applicant’s Request:

 Application Received:                               20 060810
         Characterization of Service:             
         Basis for Discharge :                       COURT MARTIAL
         Discharge Authority :                       MARCORSEPMAN PAR 1105
         Duty Assignment/ Command at Discharge:    Su-UNIT 1M 1STMARDIV, CAMPEN CA 92055

Applicant’s Request:
          Characterization change to:              
         Narrative Reason change to:              
         Review Requested:                         
Representation:                                   
        
Applicant’s Issues :
1. Misconduct caused by Family Problems
 2. In Service - Equity
3 . Applicant is claiming counsel misrepresentation
4 . Applicant is claiming his m en tal h ealth problems were not properly acknowledged or treated

Decision:

 By a vote of the Characterization shall .     
By a vote of the Basis for Discharge shall due to SPECIAL COURTS MARTIAL .
Date of Decision:                                            20 0708 16
Location of Board:                                  Washington D.C.
Complete Service Record:                                   
Complete Medical Record:                          
Complete Discharge Package:                       

Regarding propriety, the Board found the discharge:     
Regarding equity, the Board found the discharge:        
Regarding BCD, The Board found clemency was:    


Discussion

 Issue 1 ( ) : The Applicant contends that his problems in the Marines can be attributed to his "Family Problems." While he may feel that his family problems were the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.

Issue 2 ( ) : 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 in service record and issues submitted 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.
Issue 3 (Propriety): The Applicant implies that his misconduct was the result of feeling used and neglected over alleged misrepresentations by his counsel . 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. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that his counsel misled him through the courts-martial process. The Applicant ’ s statements alone do not overcome the government ’ s presumption of regularity in this case. However, even if the Applicant could show misrepresentations in the counsel process, such misrepresentations would neither amount to a justification nor to a defense for the Applicant ’ s own misconduct.

Issue 4 (Propriety): In the Applicant ’ s case, the Board could discern no impropriety or inequity and therefore considered the Applicant ’ s discharge proper and equitable. Specifically, Applicant alleged that his mental health problems were not properly acknowledged or treated . The record, however, contains no evidence of any wrongdoing by the Applicant ’ s counsel or anyone else for that matter in the discharge process. The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. As such, this Board presumed that Applicant ’ s discharge was regular in all respects.

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, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.

Summary of Service:

Prior Service:
 Inactive: USMCR (DEP)                               198 30331 - 19830925
Active: USMC                                         19830926 - 1987011 5 HON

Period of Service Under Review:
 Date of Enlistment:                                 1987011 6
Years Contracted :                                   ; Extension:
Date of Discharge:                                  19910826
Length of Service
          Active:                                      04 Yrs 07 Mths 10 D ys (does not exclude lost time)
         Inactive:                                            NONE
         Time Lost During This Period:             Days UA: 46 Days Confinement: 64
        
Education Level:                                   
Age at this Enlistment:                                    
AFQT:                                                 52
MOS:                                                  0311
Highest Rank:                                       
Proficiency/Conduct marks (# of occasions):               3.4 ( 11 ) / 3.0 ( 11 )

Awards and Decorations (as listed on the DD Form 214): RIFLE MARKSMANSHIP BADGE (3 RD AWARD), SEA SERVICE DEPLOYMENT RIBBON, GOOD CONDUCT MEDAL, CERTIFICATE OF COMMENDATION


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

19870116:        Reenlisted this date for a term of 4 years.
19870630:        Counseling: Advised of deficiencies in performance and conduct (Insubordinate attitude.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

19870914:        Counseling: Advised of deficiencies in performance and conduct ( Lack of judgement on wearing of inappropriate civilian glassed while in uniform after being told numerous occasions not to wear them .), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
19880418 :        NJP for violation(s) of UCMJ:
         Article 91: Willful disobeyed a direct order.
         Article 92: Wearing unauthorized liberty attire an earring.
         Award: Forfeiture of $208.00 for 1 month (suspended for 3 months), restriction and extra duty for 14 days (suspended for 3 months).
         Not appealed.

Elements of Discharge: [Bad Conduct Discharge]
Discharge Process

 Date Charge(s) Preferred:                                   19890926
Charge(s) and Specification(s):
         Article 86 : (4 specs)
Spec 1: Did on or about 0530, 19890502, failed to go at the time prescribed to appointed place of duty.
Spec 2: Did on or about 0630, 19890507, failed to go at the time prescribed to appointed place of duty.
Spec 3: Did on or about 1115, 19890619, failed to go at the time prescribed to appointed place of duty.
Spec 4: Did on or about 19890720, without authority, absent himself from his organization, and did remain so until on or about 19890905.
          Article 91 : (2 specs)
Spec 1: Willfully disobeyed a lawful order to report to Battalion S-4 office for a working party at bldg 1450.
 Spec 2: Disrespectful to Sergeant V_ M. R_, by saying to him, “You better fine someone else, I refuse to train. ”
         Article 92:
Specification: Violate a lawful order on or about 19890625, by wrongfully drinking in his BEQ room bldg 1463.
         Article 112a:
Specification: Wrongfully use of cocaine on or about 19890522.
         Article 123:
Specification: Unlawfully make and utter to North Air Force base Exchange, a certain check upon Security Pacific Bank on or about 19890409.
Additional Charges:
         Article 86 (9 specifications)
Specification 1: Failed to go at time prescribed to appointed place of duty on or about 1800, 2000, and 2145 19891006, restriction muster.
Specification 2: Failed to go at time prescribed to appointed place of duty on or about 0700, 0900, 1100, 1300, 1500, 1800, 2000, and 2145 19891007, restriction muster .
Specification 3: Failed to go at time prescribed to appointed place of duty on or about 0700, 0900, 1100, 1300, 1500, 1800, 2000, and 2145 1989100 8 , restriction muster .
Specification 4: Failed to go at time prescribed to appointed place of duty on or about 0700, 0900, 1100, 1300, 1500, 1800, 2000, and 2145 19891009, restriction muster .
Specification 5: Failed to go at time prescribed to appointed place of duty on or about 1800, 2000, and 2145 19891013, restriction muster .
Specification 6: Failed to go at time prescribed to appointed place of duty on or about 0700, 0900, 1100, 1300, 1500, 1800, 2000, and 2145 19891014, restriction muster .
Specification 7: Failed to go at time prescribed to appointed place of duty on or about 0700, 0900, 1100, 1300, 1500, 1800, 2000, and 2145 19891015, restriction muster .
Specification 7: Failed to go at time prescribed to appointed place of duty on or about 0700, 19891016, restriction muster .
Specification 8: Failed to go at time prescribed to appointed place of duty on or about 0700, 19891017, restriction muster .

Court-martial Date:                                 19891014 & 19891226
Findings:                                            Guilty of Article(s) 86, 92, 112a
Applicant requested Bad Conduct Discharge:      
Sentence:                                            BAD CONDUCT DISCHARGE
         Confinement:                                3 months
         Reduction:                                  E-1
         Forfeiture:                                 $200.00 per month for 3 months
Date Applicant to Confinement:                     19891214
Date Applicant from Confinement:                           19900218
Date of Convening Authority action                          19900423
Date Applicant to Involuntary Appellate Leave:   19900425
Date of NC&PB Action:                               19900911
         Clemency:                                  
         Parole:                                                                
         Restoration:                                                                   
Date Appellate Review Complete:                    19910701
Date BCD ordered executed:                         19910806 SSPCMCO No. 295-91
Date Applicant Discharged:                         19910826


Additional Documents Submitted by Applicant and Considered By Board

 Total Number of Pages:                               31

Related to Period of Service Under Review:
          From Service and/or Medical Record:               Other Records:  

Related to Other Period(s) of Service:
          From Service and/or Medical Record:               Other Records:  

Related to Post-Service Period:
          Employment:                                          Finances:       
         Health/Medical Records:                             Substance Abuse:        
         Family/Personal Status:                             Education:      
         Community Service Efforts:                         References:     
         Criminal Records:                         

Other:
          Additional Statements From Applicant:             From Representative:    
         Other Documentation (Describe)                 








Pertinent Regulation/Law

 A. Paragraph 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURTS-MARTIAL , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 Jun 89 until 17 Aug 95.
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 .

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 91 ( willfully disobeying a lawful order , 92 ( violating a lawful order), 112a wrongful use of a controlled substance) and 123 ( uttering bad checks) .


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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