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USMC | DRB | 2007_Marine | MD0700013

Original file (MD0700013.rtf) Auto-classification: Denied

ex-PVT, USMC
MD07-00013

Current Discharge and Applicant’s Request:

Application Received:                               20 060927
         Characterization of Service:
         Basis for Discharge :                       COURT MARTIAL
         Discharge Authority :                       MARCORSEPMAN 1105
         Duty Assignment/ Command at Discharge:    3DBN 6THMAR 2DMARDIV MARFORLANT CAMLEJ NC

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

Applicant’s Issues :
1. In Service - Equity
2. Post Service - Equity

Decision:

By a vote of the Characterization shall .
By a vote of the Basis for Discharge shall COURT MARTIAL.

Date of Decision:                                            20 070816
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:

Issue 1 ( ). 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 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 2 ( ). 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 , to include post service accomplishments, did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded. In addition, the reason for discharge, convicted by special court-martial, is most appropriate.

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)                               19970829 – 19980706
Active:                                            NONE

Period of Service Under Review:
Date of Enlistment:                                 19980707
Years Contracted :                                   ; Extension:
Date of Discharge:                                  20040603
Length of Service
         Active:                                     5 Yrs 4 Mths 9 D ys (does not exclude lost time)

Time Lost During This Period:             185
Days UA: 154
Days Confinement: 31

Education Level:
Age at this Enlistment:
AFQT:                                                 72
MOS:                                                  0311
Highest Rank:

Proficiency/Conduct marks (# of occasions):               4.0 ( 1 ) / 3.2 ( 1 ) [Extracted from SJA’s message]

Awards and Decorations (as listed on the DD Form 214): RIFLE EXPERT BADGE (3 ^RD AWD), NATIONAL DEFENSE SERVICE MEDAL, ARMED FORCES SERVICE MEDAL, ARMED FORCES EXPEDITIONARY MEDAL, SEA SERVICE DEPLOYMENT RIBBON

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

19990508:        Counseling: Advised of deficiencies in performance and conduct (Missing movement to the rifle range. Specifically Applicant missed movement because of situational awareness. Applicant was negligent due to the fact that the appointed place and time was given prior to departure.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued .

19991104 :        NJP for violation(s) of UCMJ:
         Article 128: Did on or about 1800, 19991009, unlawfully strike CPL E_ C. K_ in the face with a closed fist .
         Article 91 : Disrespectful in language on or about 0300, 19991101 toward CPL B_ L. F_. .
         Award: Forfeiture of $537.00 for 1 month, restriction for 60 days, reduction to E-2 (suspended for 4 months).
         Not appealed.

20000922:        Summary Court-Martial.
         Charge I: Violation of the UCMJ, Article 86.
         Specification: Unauthorized absence .
         Charge II: Violation of the UCMJ, Article 87.
         Specification: Missed movement.
         Finding: To Charge I and II and the specification thereunder, guilty.
         Sentence: Forfeiture of $600.00, restriction for 60 days.
         CA action 20000922: Sentence approved and ordered executed.

20010322:        Counseling: Advised of deficiencies in performance and conduct (Pattern of misconduct), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.

20010323:        Applicant to unauthorized absence at 0700 on 20010323.

20010328:        Applicant declared a deserter.

20010814:        Applicant from unauthorized absence at 0206 on 20010814 (141 days/surrendered).

Elements of Discharge: [Bad Conduct Discharge]

Date Charge(s) Preferred:                                   20011001
Charge(s) and Specification(s):
         Article 86 : Did on or about 20010228, without authority, absent himself from his unit until 20010810.
Additional Charge: Article 86 : Failure to go .
Court-martial Date:                                 20011211
Findings:                                            Guilty of Article(s) 86
Applicant requested Bad Conduct Discharge:
Sentence:                                            BAD CONDUCT DISCHARGE
         Confinement:                                60 DAYS
         Reduction:                                  E-1
         Forfeiture:                                 NONE
         Other:
Applicant in Hands of Civilian Authorities                20010810-20010814
Date Applicant to Confinement:                     20011211 [Extracted from DD Form 214]
Date Applicant from Confinement:                           20020111 [Extracted from DD Form 214]
Date Applicant to Voluntary Appellate Leave:     20020125
Date of Convening Authority action                          20020411
Date Applicant to Involuntary Appellate Leave:   20040226
Date of NC&PB Action:                               20011211
         Clemency:                                   NONE REQUESTED
         Date Appellate Review Complete:          20030713
Date BCD ordered executed:                         20040309 SSPCMCO No. V04-0274
Date Applicant Discharged:                         20040603

Additional Documents Submitted by Applicant and Considered By Board

Total Number of Pages:                               2

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 .

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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USMC | DRB | 2007_Marine | MD0700013

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