Search Decisions

Decision Text

USMC | DRB | 2007_Marine | MD0700076
Original file (MD0700076.rtf) Auto-classification: Denied
ex-, USMC
MD07-00076
Current Discharge and Applicant’s Request

 Application Received:                               20 061018
         Characterization of Service:             
         Basis for Discharge :                       COURT-MARTIAL
         Discharge Authority :                       MARCORSEPMAN 1105

Applicant’s Request:
          Characterization change to:              
         Narrative Reason change to:              
        
Applicant’s Issues (as summarized by NDRB) :
1. Enhance employment opportunities
2. Punishment too harsh
3. Post-service conduct           
                 

Decision

 By a vote of the Characterization shall .     
By a vote of the Basis for Discharge shall COURT MARTIAL .
Date of Decision: 20 070823                                Location of Board: Washington D.C.

Discussion

 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 the Boa rd determined that clemency was not warranted and that the sentence awarded the Applicant at his court-martial was appropriate for the offense he committed.

Issue 3 ( ). 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 the service. The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge 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. After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate . The Board noted that the Applicant’s post-service evidence of his mother’s illness and hospitalization conflicted with his unsworn statement offered during his court-martial indicating that his mother had died 3 days before he joined the Marine Corps. The evidence of post-service conduct was found not to mitigate the conduct which precipitated the discharge.

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 that .

Summary of Service

Prior Service: Inactive: USMCR (DEP) 20000226 - 20000710                 Active:                                    
Period of Service Under Review:
 Date of Enlistment: 20000711      Years Contracted : ; Extension:          Date of Discharge: 20021029
Length of Service : 01 Yrs 07 Mths 11 D ys (does not exclude lost time) Lost Time : Days UA: 215 Days Confinement: 33
Education Level: Age at Enlistment: AFQT: 32    MOS: 0311         Highest Rank:
Proficiency/Conduct marks (# of occasions):      2.7 ( * ) / 2.6 ( * ) *not found in record
Awards and Decorations (as listed on the DD Form 214): RIFLE MARKSMAN BADGE

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

 None.
Elements of Discharge: [Bad Conduct Discharge]

 Date Charge(s) Preferred:        20010823          Charge(s) and Specification(s): Article 86: UA from 20010115 until 20010820
Court-martial Date: 20010906      Findings: Guilty of Article(s) 86
Sentence: BCD    Confinement: 40 DAYS      R IR : E-1 FOP: $695.00 pay per month for 3 months CA action : 200 21101
NC&PB Action:    NO T FOUND IN RECORD       Date Appellate Review Complete:          
BCD ordered executed: 20021017 SSPCMCO No. 02-1240                 Date Applicant Discharged: 20021029


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, Mother’s medical records, Award of Excellence from Fullerton Union High School, Scholar Athlete Certificate from Fullerton Union High School, Academic Letter Award from Fullerton High School (2), Certificate of Graduation from Ladera Vista Junior High School, Leaders in Training Award from The Boys & Girl Club of Fullerton

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 , Absence without leave (for more than 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 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

Similar Decisions

  • NAVY | DRB | 2008_Navy | ND0801433

    Original file (ND0801433.rtf) Auto-classification: Denied

    The Board acknowledges the misconduct of the Applicant and determined the awarded characterization was appropriate; an upgrade would be inappropriate.After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found ” Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received...

  • NAVY | DRB | 2006_Navy | ND0601179

    Original file (ND0601179.rtf) Auto-classification: Denied

    Elements of Discharge: [REQUESTED BY MEMBER] Discharge Process: Voluntary: Requested by MemberDate Member Requested Separation:20040406Member Requested Separation Due To: Characterization Requested:UNDER OTHER THAN HONORABLE CONDITIONSmember Recognized Least Favorable:Recommendation of Commanding Officer (date): NOT APPLICABLEDischarge approved by (date): COMMANDING OFFICER, TRANIENT PERSONNEL UNIT, GREAT LAKES,IL 20040407Narrative reason directed:Characterization directed: Date Applicant...

  • USMC | DRB | 2014_Marine | MD1400083

    Original file (MD1400083.rtf) Auto-classification: Denied

    The Applicant’s service record documents a punitive conviction and punishment, as adjudged by a Special Court-Martial, on 28 September 2000. Clemency denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .The Applicant remains eligible for a personal appearance hearing...

  • USMC | DRB | 2007_Marine | MD0700961

    Original file (MD0700961.rtf) Auto-classification: Denied

    The evidence of record clearly indicates that the Separation Authority did not consider the Applicant’s enlistment waiver for pre-service drug use on the issue of his characterization of service. Commanding Officer Recommendation (date): , SUSPENDED FOR 12 MONTHS (20021009) SJA review (date): (20021025) Separation Authority (date): CG, MARINE CORPS BASE HAWAII (20021029) Basis for discharge directed: DUE TO: Characterization directed: Date Applicant Discharged: 20021029 Types of Documents...

  • NAVY | DRB | 2009_Navy | ND0900023

    Original file (ND0900023.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues1. .Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and basis for discharge, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .ADDENDUM: Information for the Applicant Complaint Procedures : If you believe the decision in your case...

  • NAVY | DRB | 2011_Navy | ND1100801

    Original file (ND1100801.rtf) Auto-classification: Denied

    Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries,and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. ” Additional Reviews : After a document review has been conducted, former members are...

  • NAVY | DRB | 2010_Navy | ND1002058

    Original file (ND1002058.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant seeks a change in his RE code to re-enlist in the Reserve or National Guard.2. Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain...

  • NAVY | DRB | 2008_Navy | ND0801627

    Original file (ND0801627.rtf) Auto-classification: Denied

    The Board determined an upgrade would be inappropriate.After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found 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...

  • USMC | DRB | 2008_Marine | MD0801063

    Original file (MD0801063.rtf) Auto-classification: Denied

    In light of the positive aspects of the Marine’s service record the command did not pursue a punitive discharge; an under other than honorable conditions discharge may seem to be harsh to the Applicant however, it is within the standards of Naval discipline and most violators with cocaine use receive punitive discharges. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record, Discharge Process and evidence submitted by the Applicant, the...

  • NAVY | DRB | 2007_Navy | ND0700663

    Original file (ND0700663.rtf) Auto-classification: Denied

    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, the Board found that Summary of Service Prior Service: Inactive: USNR (DEP)20010912 - 20010927Active: Period of Service Under Review: Date of Enlistment: 20010928Years Contracted:; Extension: Date of Discharge:20060518Length of Service: 04 Yrs 07Mths21 DysLost Time:Days UA: Days Confined: Education...