Upgrade.Vet

USMC | DRB | 2006_Marine | MD0601101

Original file (MD0601101.rtf) Auto-classification: Denied

ex-PVT, USMC
MD06-01101

Current Discharge and Applicant’s Request :

Application Received:                               20 060816
Narrative Reason for Separation:
Character of Service:                                BAD-CONDUCT DISCHARGE
Discharge Authority :                                MARCORSEPMAN 1105
Last Duty Assignment/ Command at Discharge:       1STBN 6THNAR 2DMARDIV CAMP LEJEUNE NV

Applicant’s Request:
         Narrative Reason change to:               NOT APPLICABLE
         Characterization chang e to:                GENERAL (UNDER HONORABLE CONDITIONS)
         Review Requested :
Representation:

Decision:

Date of Decision:                                            200706 28
Location of Board:                                  Washington D.C.
Complete Service Record:                                    YES
Complete Medical Record:                           YES
Complete Discharge Package:                        YES
Regarding propriety, the Board found the discharge:
Regarding equity, the Board found the discharge:         EQUITABLE

By a vote of the Characterization shall BAD-CONDUCT DISCHARGE
By a vote of the Narrative Reason shall COURT-MARTIAL

Summary of Service :

Prior Service:
Inactive: USMC R (DEP)                               20020323-20020922
Active:                                    NONE
Period of Service Under Review :
Date of Enlistment:                                 20020923
Years Contracted :                                   ;
Date of Discharge:                                  20041115
Length of Service:                                  01 Yrs 05 Mos 27 Days ^{Does not exclude lost time, if any.}
Time Lost During This Period:                      2 10
Days Unauthorized Absence:                         16 2
Days Confinement:                                   4 8

Education Level:
Age at this Enlistment:
AFQT:                                                 43
MOS:                                                   0351
Highest Rate/Rank:                                   PFC

Performance Evaluation Averages (number of marks):
P roficiency :                                         4.2
Conduct :                                              3.2

Awards and Decorations (as listed on the DD Form 214):
RIFLE MARKSMAN BADGE, NATIONAL DEFENSE SERVICE MEDAL

Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

20030721:        To u nauthorized absence status.

20030823:        Declared a deserter.

20040102:        From u nauthorized absence status.

20040103:        Applicant in the hands of civilian authorities until 20040107.

20040108:        Applicant in pre-trial confinement until 20040219.

20040220 :        Special . Court-Martial.
         Charge: V iolation of the UCMJ, Article 86 .
         Specification: Without authority absent himself from his unit 20030721 until 20040103 .
         Finding: To Charge and the specification thereunder, guilty.
         Sentence: Confinement for 60 days, reduction to E-1, and a Bad Conduct Discharge.
         CA action 20040504 : Sentence approved and , except for the bad conduct discharge, will be executed. The period of time spent in hands of civilian authorities from 20040103 through 20040107 and pretrial confinement from 20040108 through 20040219 altogether totaling forty-eight days are credited toward the period of confinement approved .

Elements of Discharge: [BCD]

Record of Trial Complete:
Date Charges Preferred:                            20040115
Date Charges Referred to Special Court - Martial: 20040127
Trial Date:                                          20040220
Applicant requested BCD:                                     YES, STATEMENT TO SPCM
Da te Applicant to Pre-trial Confinement:                   20040108
Date Applicant from Pre-trial Confinement :                20040219
Date Applicant to Voluntary Appellate Leave:      20040407
Date Applicant to Involuntary Appellate Leave:    20040512
NMCCA Action and Date:                               A FFIRMED FINDINGS AND SENTENCE ON 20040708
Date Appellate Review Complete:                   20040926
Date of SSPCMO ordering BCD be executed :          20041019
Date Applicant Discharged:                          20041115

Additional Information Considered by Board

Type of d ocumentation submitted by t he Applicant and considered by the Board

        Document Type                                        #Pages
Related to Period of Service Under Review :
         Service/Medical Record :                            6
         Other Period of Service:                                    0
Related to Post-Service Period:
         Community Service :                                   0
         Education :                                           0
         Employment :                                          0
         Health /Medical :                                     0
         Character Statements:                               1
         Criminal Records Checks:
         Additional Statements from Applicant:             1
Other Documentation (Describe Below)                      1

Total Number of Pages:                            9

D escription of Other Documentation:
        Letter from H_ B_ (Mother)



Applicant’s Issues, as summarized by the Board:
1. Clemency .
2. Post service .

Decisional Issues:
The Board accepted Issues 1- 2 for consideration.

Issue 1 (Equity). In response to the Applicant’s clemency request, 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. The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The NDRB found the evidence of record did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offense for which the discharge was awarded. In addition, the reason for discharge, convicted by special court-martial, is most appropriate. 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.

Issue 2 (Equity). The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, 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, is considered. The Applicant provided two character statement s as documentation of post-service accomplishments. The Applicant's efforts need to be more encompassing than those provided. For example, the Applicant could have produced evidence of a verifiable and continuous employment record, documentation of community service, and certification of non-involvement with civil authorities. The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge. Relief denied.

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.

Minority Opinion

None

Pertinent Regulation/Law

A. The Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 01 Sep 2001 until Present, Paragraph 1 105 , DISCHARGE ADJUDGED BY SENTENCE OF COURT-MARTIAL.

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 86 , Unauthorized absence over 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 . 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, provided 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 granted 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.

Employment / 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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USMC | DRB | 2006_Marine | MD0601101

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