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USMC | DRB | 2006_Marine | MD0601223
Original file (MD0601223.rtf) Auto-classification: Denied
ex-, USMC
MD06-01223
Current Discharge and Applicant’s Request:

 Application Received:                               20 060914
         Characterization of Service:              DISCHARGE
         Basis for Discharge :                       COURT MARTIAL
         Discharge Authority :                       MARCORSEPMAN 1105
         Duty Assignment/ Command at Discharge:    SCOLOFINF MCB CAMP PENDLETON CA

Applicant’s Request:
          Characterization change to:              
         Narrative Reason change to:              
         Review Requested:                         
         Representation:                                    
        
Applicant’s Issues :
 1. Reenlistment opportunities.
2. Education opportunities
 3. Clemency
Decision:

By a vote of 5-0 the Discharge Characterization shall remain BAD CONDUCT DISCHARGE.
By a vote of 5-0 the Narrative Reason shall remain COURT-MARTIAL.

Date of Decision:                                            20070830      
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:      Proper
Regarding equity, the Board found the discharge:         E QUITABLE
Regarding BCD, the Board found clemency was:      UNWARRANTED

Issue 1&2 : The Board determined that th ese Issue s are n ot issue s which can form the basis for relief for the Applicant or that the Board did not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to page one of the Addendum regarding this issue.

Issue 3: (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.






Summary of Service:
Prior Service:
 Inactive: USMCR (DEP)                               19991120 - 20000213
Active:                                             

Period of Service Under Review:
 Date of Enlistment:                                 20000214
Years Contracted :                                   ; Extension:
Date of Discharge:                                  20030123
Length of Service
          Active:                                      02 Yrs 06 Mths 10 D ys (does not exclude lost time)
Time Lost During This Period:                      120
Days UA:                                             98
Confinement:                                         2 2
        
Education Level:                                   
Age at this Enlistment:                                    
AFQT:                                                 69
MOS:                                                  0300
Highest Rank:                                       
Proficiency/Conduct marks (# of occasions):               2.4 ( 1 ) / 1.8 ( 1 )
Awards and Decorations (as listed on the DD Form 214): RIFLE SHARPSHOOTER BADGE


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

 20000721 :        NJP for violation(s) of UCMJ:
         Article 86: UA 0431, 20000714 to 0930, 20000714.
         Article 92: Refused to train on or about 20000719.
         Award: Forfeiture of $263.00 for 1 month, restriction and extra duty for 14 days.
         Not appealed.
20000721 :        Counseling: Advised of deficiencies in performance and conduct ( Article 92: Failure to obey order or regulation , Article 86: Absence without leave . N ecessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

Elements of Discharge: [Bad Conduct Discharge]

 Date Charge(s) Preferred:                                   20001116
Charge(s) and Specification(s):                     Article 86 : (2 Specifications)
 Spec 1: UA from 20000722 until 20000724.
                                                               Spec 2: UA from 20000801 until apprehended on 20001107.
 Court-martial Date:                                 20001201
Findings:                                            Guilty of Article(s) 86 (2 specs)
Applicant requested Bad Conduct Discharge:       YES
Sentence:                                            BAD CONDUCT DISCHARGE
         Confinement:                                30 DAYS
         Reduction:                                  E-1
         Forfeiture:                                 $670.00 for 1 month
Date Applicant to Pre-trial Confinement:                  20001107
Date Applicant from Pre-trial Confinement:                20001130
Date Applicant to Voluntary Appellate Leave:     20001214
Date of Convening Authority action                          20010725
Date Applicant to Involuntary Appellate Leave:   20020225
Date of NC&PB Action:                               NOT FOUND IN RECORD
         Clemency:                                  
Date Appellate Review Complete:                    20021211
Date BCD ordered executed:                         20030110 SSPCMCO No. 03-003
Date Applicant Discharged:                         20030123

Additional Documents Submitted by Applicant and Considered By Board

 Total Number of Pages:                               1

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 COURT-MARTIAL , of the Marine Corps Separation and Retirement Manual, (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 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, 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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