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USMC | DRB | 2006_Marine | MD0601150
Original file (MD0601150.rtf) Auto-classification: Denied
ex-PVT, USMC
MD06-01150

 Current Discharge and Applicant’s Request :

Application Received:                               20 060905
Characterization of Service:                      
Narrative Reason for Separation:                          
Discharge Authority :                                MARCORSEPMAN PAR 1105
Last Duty Assignment/ Command at Discharge:       INTELCO 3DSRIG OKI JA

Applicant’s Request:    
         Characterization change to:              
         Narrative Reason change to:              
         Review Requested:                         
Representation:                                             


Decision:

 Date of Decision:                                            200707019
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


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


Summary of Service:

Prior Service:
 Inactive: USMCR (DEP)                               19901213 19910527

Period of Service Under Review:
 Date of Enlistment:                                 19910528
Years Contracted :                                   ; Extension:
Date of Discharge:                                  19941018
Length of Service
         Active:                                      03 Yrs 03 Mths 15 D ys (Does not exclude lost time)

Time Lost During This Period:                      34
 Days UA:                                             N ONE
Days Confinement:                                   3 4
        
Education Level:                                   
Age at this Enlistment:                                    
AFQT:                                                 68
MOS:                                                  0151
Highest Rank:                                       

Proficiency/Conduct marks (# of occasions):               4.1 (6) / 3.4 (6)

Awards and Decorations (as listed on the DD Form 214):   RIFLE MARKSMANSHIP BADGE, NATIONAL DEFENSE SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON, LETTER OF APPRECIATION



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

19920323:        Counseling: Advised of deficiencies in performance and conduct . U nauthorized absence fr om appointed place of duty, substandard performance while attending this course by sleeping and disrupting the class, poor personal appearance, and failure to maintain an acceptable wall locker display. N ecessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
19920420:        Counseled concerning loss of an Armed Forces Identifications Card. Notified that further incidents will result in administrative or disciplinary action.

19920714 :        Counseling: Advised of deficiencies in performance and conduct . Pattern of frequent traffic violations (speeding/reckless driving) and also on/off based driving privileges (civilian vehicles only) are revoked for the remainder of my overseas tour ) . Ne cessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
19920909:        Counseling: Advised of deficiencies in performance and conduct . Violation of General Order 7, at Camp Hansen on 19920904 at or about 2030 SNM while on post I was seen by SSGT M_ (Commander of the Guard) talking to his buddy for more than 5 minutes. All Marine in section II were counseled during Guard Mount concerning their general orders. N ecessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
19920918 :        NJP for violation(s) of UCMJ:
         Article 86: UA from Armory at 1545, 19920915.
         Article 92: Failure to obey a lawful order.
         Award: Forfeiture of $189.00 for 1 month (suspended for 6 months), restriction and extra duty for 14 days .
         Not appealed.
19921026 :        NJP for violation(s) of UCMJ:
         Article 92 : Failure to obey a lawful order .
         Award: Forfeiture of $ 440 .00 for 2 months, restriction for 60 days (30 days suspended for 3 months) , reduction to E- 2 .
         Not appealed.
19921027:        Counseling: Advised of deficiencies in performance and conduct . Pattern of misconduct due to frequent involvement with military authorities. N ecessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
19930111:        Counseling: Advised of deficiencies in performance and conduct . Pattern of misconduct due to frequent involvement with military authorities. N ecessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
19930113 :        NJP for violation(s) of UCMJ:
         Article 121: Wrongfully appropriate personal clothing, property of LCpl C. A. R_ 19921123.
         Award: Restriction for 30 days (suspended for 3 months), reduction to E-1.
         Not appealed.
19930416 :        Special Court-Martial.
         Charge I : V iolation of the UCMJ, Article 86 .
          Specification: Fail to go at the time prescribed to his appointed place of duty on 19930222 . Plea: Guilty. Finding : Guilty.
         Charge II: Violation of the UCMJ, Article 91.
          Specification 1 : Disobey a lawful order from SSGT E_ J. J_ on 19930131. Plea: Guilty. Finding : Guilty.
          Charge III: Violation of the UCMJ, Article 121:
         Specification: Steal (1) bottle of Armani cologne, (1) pair of Hi-Tech brand boots, and (1) TEX Tan brand leather belt, of a total value of $91.95 the property of the Army and Air Force Exchange System on 19990203. Plea: Guilty. Finding : Guilty.
Specification 2: Steal one pair of yellow dress slacks, one pair of black Levi jeans, one white sweater, one long sleeve turquoise shirt and black portable Sony walkman speaker, of a total value of over $100.00 the property of PFC P_ O_, between 8 February 1993 and 29 March 1993. Plea: Not Guilty. Finding : Not Guilty.
         Charge IV: Violation of the UCMJ, Article 134:
          Specification: Communicate a threat to SSGT E. J. J_ on 19930131. Plea: Guilty. Finding : Guilty.
          Additional Charge I: Violation of the UCMJ, Article 121:
          Specification 1: Steal one Goldstar 19 inch color television with built-in VCR, one goldstar television/VCR with remote control, one Sega Genesis television video game, and four Sega Genesis video game cartridges, of a total value of over $100.00 the property of LCPL S_ P. M_, between 8 February and March 1993. Plea: Guilty. Finding : Guilty.
          Additional Charge II: Violation of the UCMJ, Article 130.
          Specification: Unlawfully enter a barracks room with intent to commit larceny between 8 February 1993 and 29 March 1993. Plea: Guilty. Finding : Guilty.
          Finding: To Charge and the specification thereunder, guilty.
          Sentence: Confinement for 120 days, Bad conduct discharge.
         CA action 19930720: Sentence approved and, except for the bad conduct discharge, ordered executed.. However, execution of that portion of the sentence extending to confinement in excess of 30 days is suspended for a period of six months from the date of this action, at which time, unless sooner vacated, it will be remitted without further action.


Elements of Discharge: [B ad Conduct Discharge ]
Record of Trial Complete:                                  
Date Charge ( s ) Preferred:                                   19930225
Date Charges Referred to Special Court - Martial:   19930308
Trial Date:                                          19930416
Applicant requested B ad Conduct Discharge :       
Date Applicant to Pre-trial Confinement:                  19930330
Date Applicant from Pre-trial Confinement:                19930416
Date Applicant to Confinement:                      19930524      
Date Applicant from Confinement :                           19930607      
Date Applicant to Voluntary Appellate Leave:      19930616
Date Applicant to Involuntary Appellate Leave:    1993091 7
NC&PB Action and Date:                              W AIVER OF CLEMENCY REVIEW 19930422      
NMCCA Action and Date:                               A FFIRMED FINDINGS AND SENTENCE 19940112      
Date Appellate Review Complete:                     19940523      
Date of SSPCMO ordering BCD be executed :          19941018      
Date Applicant Discharged:                          19941018


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 :                              2      
         Other Period of Service:                                    0      
Related to Post-Service Period:
          Community Service :                                   0      
         Education :                                           0      
         Employment :                                          0      
         Health /Medical :                                       0      
         Character Statements:                               0      
         Criminal Records Checks:                                    0      
         Additional Statements from Applicant:             1      
Other Documentation (Describe Below)                      0      

Total Number of Pages:                              3      


Applicant’s Issues as Summarized by th e 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 one personal statement 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, proof of educational pursuits, 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.



Pertinent Regulation/Law

 A. The Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 Jun 1989 – 17 Aug 1995, Paragraph 1105, 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 91, Insubordinate conduct, Article 92 , failure to obey order, regulation, Article 121, larceny, Article 130, Housebreaking, and Article 134, Communicating a threat. .


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.

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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