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USMC | DRB | 2007_Marine | MD0700070
Original file (MD0700070.rtf) Auto-classification: Denied
ex-, USMC
MD07-00070
Current Discharge and Applicant’s Request

 Application Received: 20 061017                      Characterization of Service:
Narrative Reason : COURT-MARTIAL            Discharge Authority : MARCORSEPMAN 1105

Applicant’s Request:      Characterization change to:
                           Narrative Reason change to: FINANCIAL DIFFICULTIES
        
Applicant’s Issues (as summarized by NDRB) :
1. Desire to re-enlist
2. Post-service conduct  
                 
Decision

 By a vote of the Characterization shall .     
By a vote of the Narrative Reason shall COURT-MARTIAL .

 Date of Decision:        20 070823                           Location of Board: Washington D.C.

Issue 1: either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum regarding .

Issue 2 ( ). 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 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, as approved, was appropriate for the offenses he committed.

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, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, t he Board found that

Summary of Service

Prior Service: Inactive: USMCR (DEP ) 19940510 - 19941108        Active: USMC 19941109 – 19981104 HON
Period of Service Under Review:
 Date of Enlistment: 19981105      Years Contracted : ; Extension: 21MONTHS   Date of Discharge: 20040914
Length of Service : 05 Yrs 10 Mths 09 D ys (does not exclude lost time) Lost Time : Days Confinement: 149
Education Level:                  Age at Enlistment:       AFQT: 46          MOS: 0331         Highest Rank: SERGEANT
Proficiency/Conduct Marks: NOT AVAILABLE                  Fitness reports available for review?
Awards and Decorations (as listed on the DD Form 214): MARINE CORPS GOOD CONDUCT MEDAL (2), NAVY AND MARINE CORPS ACHIEVEMENT MEDAL, NATIONAL DEFENSE SERVICE MEDAL (2), SEA SERVICE DEPLOYMENT RIBBON (2), MERITORIOUS UNIT COMMENDATION, CERTIFICATE OF COMMENDATION (INDIVIDUAL AWARD) (3), LETTER OF APPRECIATION, RIFLE EXPERT BADGE (4), PISTOL EXPERT BADGE (2).



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

19981105:        Reenlisted this date for a term of 4 years

20010518:        Extended enlistment for 21 months this date.

 20001108:        MARCORSEPMAN para 6105 counseling for s ubstantiated spousal abuse Level III as assessed by the Family Advocacy Program on 20000107.
Elements of Discharge: [Bad Conduct Discharge]
Discharge Process

 Charge(s) and Specification(s):
         Article 80 , Attempt to sell stolen golf clubs ;
         Article 107 , False official statement ;
         Article 108 , wrongful disposition of ammunition ;
         Article 121 , Larceny (3 specs) ;
         Article 123 , Forgery (11 specs) ;
         Article 123a , Worthless checks ;
         Article 130 , Housebreaking ;
         Article 134 , (2 specs) .
Preferred: 20021205       Court-martial: 20030211   Findings: Guilty of Article(s) 107, 121 (2 specs -- wrongfully appropriate camcorder and steal 11 checks ), 123 (forge 11 check s), 123a ( 26 worthless checks totalling $2600.00), 134 ( concealed larceny of golf clubs)
Sentence: BCD; Conf 270 days ; RIR E-1 ; FOP NONE ; Other: NONE             CA action: 20030728
Appellate Review Complete: 20040822       BCD ordered executed: 20040826 SSPCMCO No. 04-1199
Applicant Discharged: 20040914

Additional Documents Submitted by Applicant and Considered By Board

 Related to Military Service:     Service and/or Medical Record:            Other Records:

Related to Post-Service Period:         
         Employment:                        Finances:                          Education:               
         Health/Medical Records:                   Substance Abuse:                           Criminal Records:       
         Family/Personal Status:                   Community Service:                References:              
        
Additional Statements From Applicant:    From Representative:
Other Documentation (Describe) Resume

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 107, False official statements; Article 121, Larceny; Article 123, Forgery; Article 123a, Making, drawing, or uttering check, draft, or order without sufficient funds; and Article 134, Misprision of serious offense.


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, 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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