Search Decisions

Decision Text

USMC | DRB | 2007_Marine | MD0700511
Original file (MD0700511.rtf) Auto-classification: Denied
ex-PVT, USMC
MD07-00511
Current Discharge and Applicant’s Request
Application Received: 20070308   Characterization Received:
Narrative Reason: AS A RESULT OF TRIAL BY COURT-MARTIAL          Authority: MARCORSEPMAN1105

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Clemency.

Decision

 By a vote of the Characterization shall .     
By a vote of the Narrative Reason shall AS A RESULT OF TRIAL BY COURT-MARTIAL.      

Date: 20 071101             Location: Washington D.C.         Representation :

Discussion

 Issue 1 (Equity). With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency (leniency). 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 . 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 absolutely appropriate. However, t he NDRB found the evidence of record did contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded. After a thorough review of the Applicant’s record , issues submitted, and the standards of discipline, the Board determined that clemency was warranted.

Summary of Service

Prior Service:
 Inactive: USMCR (DEP)     19970220 – 19970406            
Period of Service Under Review:
 Date of Enlistment: 19970407               Years Contracted : 4 ; Extension:          Date of Discharge: 19990305
Length of Service : 01 Yrs 09 Mths 29 D ys          Lost Time : Days UA: 30 Days Confine d :
Education Level: 12       Age at Enlistment: 25     AFQT: 57          MOS: 0311        Highest Rank: PFC
Proficiency/Conduct marks (# of occasions):      4.1(2) / 4.1(2)  
Awards and Decorations ( per DD 214): RIFLE EXPERT BADGE


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

 19970914:        Applicant to unauthorized status.

19971014:        Applicant from unauthorized status (surrendered).

Bad Conduct Discharge
Discharge Process

 Charge(s) and Specification(s): Article 86 .
Preferred: 19971029       Court-martial: 19971204   Findings: Guilty of Article 86
 Sentence: BCD            CA action: 19980206
NC&PB Action: NONE                                 
Appellate Review Complete: 19981130       BCD ordered executed: 19990305 SSPCMCO No. 99-323
Applicant Discharged: 19990305


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 COURTS-MARTIAL , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16 E ), effective 18 August 1995 until 31 August 2001 .
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 86.

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

Similar Decisions

  • NAVY | DRB | 2008_Navy | ND0800443

    Original file (ND0800443.rtf) Auto-classification: Denied

    Young and immature Decision Date: 20080404Location: Washington D.C Representation: By a vote of the Characterization shall .By a vote of the Narrative Reason shall PATTERN OF MISCONDUCT.Discussion : 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. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record...

  • USMC | DRB | 2007_Marine | MD0700063

    Original file (MD0700063.rtf) Auto-classification: Denied

    Relief denied.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. Elements of Discharge: [INVOLUNTARY] Date Notified: 19990803Basis for Discharge: due to: Least Favorable Characterization: Commanding Officer’s Intended Recommendation: Date Applicant Responded to Notification: 19990803 Rights Elected at Notification:Consult with...

  • USMC | DRB | 2006_Marine | MD0600876

    Original file (MD0600876.rtf) Auto-classification: Denied

    The Applicant was processed for discharge on the basis of misconduct due to a pattern of misconduct. The Board found that the Applicant was counseled, per regulations, after his second NJP on 19981020. The Board specifically determined that the Applicant, had he not been discharged for a pattern of misconduct but instead been separated at EAS with characterization of service based on service markings, could have received a characterization of service as general (under honorable conditions).

  • USMC | DRB | 2007_Marine | MD0700563

    Original file (MD0700563.rtf) Auto-classification: Denied

    After a thorough review of the Applicant’s record, issues submitted, and the standards of discipline, the Board determined that clemency was not warranted. 200400779 Applicant Discharged: 20041203 Types of Documents Submitted by Applicant and Considered By BoardRelated 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...

  • NAVY | DRB | 2008_Navy | ND0800099

    Original file (ND0800099.rtf) Auto-classification: Denied

    Request the Board’s relief with an up-grade of his characterization of service based on clemency. By a vote of the Narrative Reason shall COURT-MARTIAL.Discussion Issue 1 () The Applicant request the Board’s relief with an up-grade of his characterization of service based on clemency. The Applicant claims he made the decision to enter into an unauthorized absence (UA) status when he was told he would not be able to have elective surgery to remove the mass on a scheduled date due to the...

  • USMC | DRB | 2007_Marine | MD0701014

    Original file (MD0701014.rtf) Auto-classification: Denied

    After a thorough review of the Applicant’s record, issues submitted, and post service accomplishments, the Board determined that discharge awarded the Applicant at his court-martial was appropriate for the offenses 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 Administrative Corrections to the Applicant’s DD 214...

  • USMC | DRB | 2007_Marine | MD0700990

    Original file (MD0700990.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, Court-Martial proceedings, Discharge Process and evidence submitted by the Applicant, the Board found that clemency was not warranted and that the sentence awarded the Applicant at his court-martial was appropriate for the offensesthat he committed. 04-1563 Applicant Discharged: 20041109 Types of Documents Submitted by Applicant and Considered By BoardRelated...

  • NAVY | DRB | 2007_Navy | ND0700198

    Original file (ND0700198.rtf) Auto-classification: Denied

    After a thorough review of the Applicant’s record, issue submitted, and post service accomplishments, the Board determined that the Applicant’s diagnosis did not provide grounds for misconduct, clemency was not warranted and that the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. Whenever a member is being...

  • USMC | DRB | 2007_Marine | MD0700233

    Original file (MD0700233.rtf) Auto-classification: Denied

    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. Additionally, the Board has no authority to upgrade a...

  • USMC | DRB | 2009_Marine | MD0901955

    Original file (MD0901955.rtf) Auto-classification: Denied

    The NDRB found an upgrade to Honorable is warranted on equitable grounds.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 :...