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USMC | DRB | 2007_Marine | MD0700264
Original file (MD0700264.rtf) Auto-classification: Denied
ex-, USMC
MD07-00264
Current Discharge and Applicant’s Request
Application Received: 20061220   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. Employment opportunities.
                           2. Clemency.
                           3. Post service.


Decision

By a vote of 3-2 the Characterization shall remain BAD CONDUCT DISCHARGE .       
By a vote of 5-0 the Narrative Reason shall remain COURT-MARTIAL.
Date : 2007 1002      Location: Washington D.C. The Board found that

Discussion

Issue 1: The Board determined that th is Issue is n ot 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. The Applicant is directed to the Addendum .

Issue 2 (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 re ason for discharge, convicted by special court-martial, is most appropriate. After a thorough review of the Applicant’s record , issues submitted, post service, and the standards of discipline, the Board determined that clemency was not warranted.

Issue 3 (Equity). The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, 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, is considered. The Applicant provided documentation of educational pursuits and job training certificates. The Applicant's efforts need to be more encompassing. For example, the Applicant could have produced evidence of a verifiable and continuous employment record, documentation of community service, further educational pursuits, and certification of non-involvement with civil authorities. The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge.


Summary of Service

Prior Service:
 Inactive: USMCR (DEP)     19960404 - 19960421                      
Period of Service Under Review:
 Date of Enlistment: 19960422      Years Contracted : ; Extension:                   Date of Discharge: 19990413
Length of Service : 02 Yrs 10 Mths 01 D ys          Lost Time : Days UA: 40 Days Confine d : 12
Education Level:         Age at Enlistment:       AFQT: 45          MOS: 0331 Highest Rank:
Proficiency/Conduct marks (# of occasions):      4. 1 ( 8 ) / 3.8 ( 8 7 )
Awards and Decorations ( per DD 214): RIFLE MARKSMAN BADGE, SEA SERVICE DEPLOYMENT RIBBON


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

 19961119 :        CO's NJP -- Viol UCMJ Art. 121 – Steal $280.00, the property of PFC H_ . Awarded - FOP ( $ 437.00 ) for ( 2 months); RIR ( E-1 ); Restr for ( 45 days); Extra duties ( 45 days) .
19970127:        CO's NJP -- Viol UCMJ Art. 134 – Wrongfully and without authority wear upon his uniform the ribbon representing combat action. Awarded - FOP ($210.00) for (1month); Restr for (14 days); Extra duties (14 days).

Discharge Process

Charge(s) and Specification(s): Article 86 , (2 specs), Spec 1: Without authority, absent himself from his unit 19980320 until 19980323 (3days) ; Spec 2: Without authority, absent himself from his unit 19980326 until 19980502 (37days/apprehended).
Preferred: 19980511       Court-martial: 19980514           Findings: Guilty of Article(s) 86
Sentence: BCD; Conf 30days ; RIR E-1 ;             CA action: 19980728
NC&PB Action: NONE                                 
Appellate Review Denied : 19990317         BCD ordered executed: 19990413 SSPCMCO No. 99-483
Applicant Discharged: 19990413


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) EMT Identification Card,


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 (s) 86, 121, and 134.

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, 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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