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USMC | DRB | 2007_Marine | MD0700823
Original file (MD0700823.rtf) Auto-classification: Denied
ex-, USMC
MD07-00823
Current Discharge and Applicant’s Request
Application Received: 20070523                     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. Clemency

Decision

 By a vote of the Characterization shall DISCHARGE .
By a vote of the Narrative Reason shall AS A RESULT OF A COURT-MARTIAL (SPCM) Other.

Date: 20 071220                      Location: Washington D.C.         Representation :

Discussion

 Issue 1 ( Clemen cy ) . 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 claims that, because he was young and immature, he made wrong choices, did not deal well with his illness and the death of his father, and wants to re-enlist. The Board noted that the Marine Corps assigned the Applicant for temporary additional duty with a local reserve unit at his home of record because of the illness of his grandfather, by whom the Applicant testified at his court-martial he was raised. The Applicant went into unauthorized absence from that unit approximately 5 weeks after his grandfather’s death. The Applicant told the court that the reason for his repeated misconduct was to help his 18-year old sister find a place to live after she dropped out of high school. The Applicant also told the court, when asked his view of the military judge’s power to either discharge him or retain him in the Marine Corps, that he “would prefer to go home.” 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.

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)     19910719 - 19911117              Active:         
Period of Service Under Review:
 Date of Enlistment: 19911118                        Years Contracted : ; Extension:   Date of Discharge: 19950207
Length of Service : 03 Yrs 02 Mths 20 D ys                   Lost Time : Days UA: Days Confine d :
Education Level:         Age at Enlistment:       AFQT: 68          MOS: 6672 Highest Rank:
Proficiency/Conduct marks (# of occasions):      4.4 ( 3 ) / 2.2 ( 6 )     Awards and Decorations ( per DD 214): Rifle , NDSM

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

 19930219:        To UA at 073 0 .

19930223:        From UA at 0730 ( 4 days/surrendered).

19930305:        To UA at 0730.

19930423:        From UA at 1443 (53 days/apprehended).
19930524:        To UA at 0730.

19930715:        From UA at 1230 (20 days/apprehended).

19931020:        To UA at 0730.

19931028:        From UA at 1100 ( 8 days/apprehended).
Discharge Process

 Charge(s) and Specification(s): Article 86 (2 specs) , U A 199305 - 19930423 /apprehended , 19930524 - 19930716 /apprehended ;
                           Article 121 (2 specs) , Larceny of truck 19930523 , wrongful appropriation of truck 19930523.
Preferred: 19930723                Court-martial: 19930819                     Findings: Guilty of Article(s) 86, 121
Sentence: BCD; Conf 2 months ; RIR E-1 ; FOP $500.00 x 2 ; Other: NONE                       CA action: 19940222
NC&PB Action: 19940520 Clemency:                          Appellate Review Complete: 19950127      
BCD ordered executed: 19950207 SSPCMCO No. 95-209                           Applicant Discharged: 19950207

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 P1900.16D), effective 27 Jun 89 until 17 Aug 95.

 B. 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); and 1 21, Larceny .
C . 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 .


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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