Search Decisions

Decision Text

USMC | DRB | 2007_Marine | MD0700236
Original file (MD0700236.rtf) Auto-classification: Denied
ex-, USMC
MD07-00236
Current Discharge and Applicant’s Request
Application Received: 20061218                              Characterization Received: DISCHARGE
Narrative Reason: AS A RESULT OF A COURT-MARTIAL (SPCM) OTHER Authority: MARCORSEPMAN 1105

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Mentally ill at time of misconduct
                           2. Post-service conduct

Decision

 By a vote of the Characterization shall DISCHARGE .   
By a vote of the Narrative Reason shall COURT MARTIAL .
Date: 20 070920                                              Location: Washington D.C.

Discussion

Issue 1 . 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 provides no evidence to support his claim of mental illness and/or how such alleged illness may have excused or mitigated his misconduct. After a thorough review of the Applicant’s record 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 indicates that he is “a better person today.” 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. Verifiable proof of post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. The NDRB encourages the Applicant to continue his efforts to become a productive citizen; however, the Applicant provides no evidence of any post-service conduct tending to warrant clemency at this time.

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

Administrative Corrections to the Applicant’s DD 214

 The NDRB did note administrative error(s) on the original DD Form 214 :

         “ JJE2 ”
         “ COURT MARTIAL ”

 The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.

Summary of Service

Prior Service:
 Inactive: USMCR (DEP)     19920820 - 19930602              Active:         
Period of Service Under Review:
 Date of Enlistment: 19930603      Years Contracted : ; Extension:                   Date of Discharge: 19980312
Length of Service : 04 Yrs 06 Mths 19 D ys          Lost Time : Days : UNABLE TO DETERMINE Days Confine d : 36
Education Level: Age at Enlistment: 17 AFQT: 39 MOS: 0311 Highest Rank:
Proficiency/Conduct marks (# of occasions):      3.1 ( 2 ) / 3.1 ( 2 )     Fitness reports :
Awards and Decorations ( per DD 214): NATIONAL DEFENSE SERVICE MEDAL, RIFLE MARKSMANSHIP BADGE

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

19940103:        CO's NJP -- Viol UCMJ Art. 121 – Attempt to steal merchandise from MCX on or about 1452, 19931217. Awarded - FOP ($217.00) for (1 month); Restr for (14days); Extra duties (14 days).
19940606:        CO's NJP -- Viol UCMJ Art. 86 – UA from 0700 – 1300, 19940509.
         Awarded - FOP ($376.00) for (2 months); RIR (E-1); Extra duties ( 45 days).
19940706:        Applicant refused counseling and treatment for drug and alcohol dependencies.
Discharge Process

Charge(s) and Specification(s): Article 86 , UA from 19940110 until 1994020 7 ; Article 112a , Use marijuana and cocaine .
Preferred: 199 4 0303 and 19940318          Court-martial: 19940328            Findings: Guilty of Article(s) 86, 112a
Sentence: BCD; Conf 45 days ; RIR E-1 ; FOP $555.00 for 2 months ;          CA action: 19941017       NC&PB Action: NONE      
Appellate Review Complete: 19980 2 24 BCD ordered executed: 19980312 SSPCMCO No. 98-439 Discharged: 19980312

Types of 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)      

Pertinent Regulation/Law

 A. Paragraph 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURT-MARTIAL , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 950818 until 010831.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications .

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 112a , Wrongful use, possession, etc., of controlled substances .

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 | 2007_Navy | ND0700693

    Original file (ND0700693.rtf) Auto-classification: Denied

    The Board has taken into consideration the letters written by the Applicant’s pastor and Dr. Mike Landry, and made a determination that as of this time, the Applicant has not provided sufficient documentation of a post-service nature to warrant an upgrade in characterization of 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...

  • NAVY | DRB | 2007_Navy | ND0700692

    Original file (ND0700692.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 Discharge Process Date Notified: 19931021Reason for Discharge: - - - Least Favorable Characterization: Date Applicant Responded to Notification: 19931021 Rights Elected at Notification: Consult with Counsel Obtain Copies of Documents Submit Statement(s) (date) Administrative Board GCMCA...

  • NAVY | DRB | 2007_Navy | ND0700340

    Original file (ND0700340.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 Administrative Corrections to the Applicant’s DD 214 The NDRB did note administrative error(s) on the original DD Form 214: “COURT-MARTIAL ” The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate. ADDENDUM: Information for the...

  • USMC | DRB | 2007_Marine | MD0701118

    Original file (MD0701118.rtf) Auto-classification: Denied

    After a thorough review of the Applicant’s record, issues submitted, the standards of discipline, post service accomplishments, and time passed since the BCD, the Board determined that some degree of clemency was warranted. 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 ServicePrior Service: Inactive: USMCR...

  • USMC | DRB | 2007_Marine | MD0700265

    Original file (MD0700265.rtf) Auto-classification: Denied

    19930423: NJP imposed and suspended on 19930409 for a period of 6 months vacated.19930803: CO's NJP -- Viol UCMJ Art. 19930824 Rights Elected at Notification: Consult with Counsel Obtain Copies of Documents Submit Statement(s) (date) Administrative Board Commanding Officer Recommendation (date): (19930823) SJA review (date): (19930830) Separation Authority (date): COMMANDING GENERAL, 1 ST Marine Division (19930910) Basis for discharge directed: DUE TO: Characterization directed: Date...

  • USMC | DRB | 2007_Marine | MD0700400

    Original file (MD0700400.rtf) Auto-classification: Denied

    Discussion Issue 1 (Clemency). After a thorough review of the Applicant’s record, issues submitted, and post service accomplishments, the Board determined t that the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed and that clemency was not warranted.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...

  • USMC | DRB | 2007_Marine | MD0701023

    Original file (MD0701023.rtf) Auto-classification: Denied

    The Applicant’s service was marred by the award of nonjudicial punishment (NJP) on four occasions for violation of the Uniform Code of Military Justice (UCMJ), Article 86 (Unauthorized Absence), Article 91 (Willfully disobey a lawful order), Article 121 (Larceny) and Article 112a (Wrongful use of controlled substance). Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge 19961127: NJP -- Viol UCMJ Art. ” Additional Reviews : Subsequent to a document...

  • USMC | DRB | 2007_Marine | MD0700122

    Original file (MD0700122.rtf) Auto-classification: Denied

    Date:20070830Location:Washington D.C.The Board found that Discussion Issue(s) 1-2: The Board determined that this Issue is not an issue 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. 86 - Unauthorized absence (7 dys).Awarded - FOP ($552.00) for (2 months); Restr for (45 days); Extra duties (45 days).20020322: Applicant to voluntary leave. ” Additional Reviews : Subsequent to a...

  • USMC | DRB | 2007_Marine | MD0700769

    Original file (MD0700769.rtf) Auto-classification: Denied

    Certain serious offenses, even though isolated, warrant separation from the Naval service in order to maintain proper order and discipline.The Applicant’s service was marred by two nonjudicial punishment for a violation of UCMJ Article 86 (Unauthorized Absence) and Article 92 (Failure to obey an order or regulation) andone Summary Court Martial finding of guilty for Article 112a (Wrongful use of a controlled substance). After a thorough review of the available evidence, to include the...

  • USMC | DRB | 2007_Marine | MD0700515

    Original file (MD0700515.rtf) Auto-classification: Denied

    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 offense that he committed. 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...