Search Decisions

Decision Text

USMC | DRB | 2008_Marine | MD0800186
Original file (MD0800186.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20071114
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN (Discharge adjudged by sentence of court martial)

Applicant’s Request:     Characterization change to:
                           Narrative Reason change to:

Summary of Service

Prior Service:
 Inactive: NONE             Active:         
Period of Service Under Review:
 Date of Enlistment: 19990106               Period of enlistment : Years Months             Date of Discharge: 20030404
Length of Service : Yrs Mths 03 D ys      Education Level:         Age at Enlistment:       AFQT: 39
MOS: 1141        Highest Rank:                     Fitness reports:
Proficiency/Conduct marks (# of occasions):     
Awards and Decorations ( per DD 214): Rifle

Periods of CONF : 20010917-20011111 (55 DAYS) , (20020108-20020108)

NJPs :    
         19990922 : Art(s) 91 ( I nsubordinate conduct towards a noncommissioned officer) . Awarded - Susp -
         20001025 : Art(s) 86 ( U nauthorized absence) . Awarded - Susp -
20001228 : Art(s) 92 ( F ailure to obey order or regualtion) ; 107 ( F alse official statement) . Awarded -
Susp - Vacated 20010223
         20010223 : Art(s) 86 . Awarded - Susp -

SPCMs:  
         20011101 : Art(s) 121 (Assault) ; 92 (Disobeying a lawful order) . Sentence - BCD; CONF, RIR, FOP .
6105 Counseling :
         19991005: For violation of the UCMJ, specifically for failure to obey Marine Corps orders and regulations.

Types of Documents Submitted

 Related to Military Service:      DD 214:          Service and/or Medical Record:            Other Records:

Related to Post-Service Period:  
         Employment:                        Finances:                          Education /Training :     
         Health/Medical Records:           Substance Abuse:                           Criminal Records:       
         Family/Personal Status:                   Community Service:                References:              
        
Additional Statements From Applicant:             From Representat ion :              From Member of Congress:
Other Documentation (Describe)

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

 1. Reentry into military service.
2. In service – Equity (Applicant believes the punishment is to harsh base d on good service. The Applicant claims he was still promotable ) .

Decision


 Date: 20 08 516              Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall COURTS-MARTIAL .
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. The Applicant is directed to the Addendum regarding . Specifically the paragraph concerning Reenlistment/RE-codes.

Issue 2 ( ) : The Applicant believes the discharge punishment is to harsh base d on good service. The Applicant claims he was still promotable. In response to the Applicant ’ s issue, 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, issues submitted, and post service accomplishments, the Board determined clemency was not warranted and the sentence 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, Record, Discharge Process and evidence submitted by the Applicant, the Board found

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 91, 92 and 107.



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

  • USMC | DRB | 2008_Marine | MD0800831

    Original file (MD0800831.rtf) Auto-classification: Denied

    From Representation: From Member of Congress: Other Documentation (Describe) DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1. After a thorough review of the available evidence, to include the Applicant’s Summary of Service and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found clemency was not warranted and the sentence awarded the Applicant at his court-martial was...

  • NAVY | DRB | 2007_Navy | ND0700739

    Original file (ND0700739.doc) Auto-classification: Denied

    ex-FR, USN ND07-00739 Current Discharge and Applicant’s Request Application Received: 20070511 Characterization Received: OTHER THAN HONORABLE Narrative Reason: PATTERN OF MISCONDUCT Authority: MILPERSMAN 1910- 140 Applicant’s Request: Characterization change to: Narrative Reason change to: Applicant’s Issues: 1. The Board noted the favorable comments indicating the Applicant’s post-service behavior; however, after a complete review of the entire record, including the evidence submitted by...

  • USMC | DRB | 2008_Marine | MD0801771

    Original file (MD0801771.rtf) Auto-classification: Denied

    Record of service, including Good Conduct Medal.4. The NDRB determined Applicant’s characterization of service was properly considered by the Administrative Discharge Board and a change would be inappropriate. The Applicant is directed to contact the Veteran’s Administration at 1-888-422-4551and/or the Defense Finance and Accounting Service at 1-800-962-0648 for further information regarding this issue.After a thorough review of the available evidence, to include the Applicant’s Summary of...

  • USMC | DRB | 2007_Marine | MD0700120

    Original file (MD0700120.rtf) Auto-classification: Denied

    After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct which precipitated the discharge. 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...

  • USMC | DRB | 2011_Marine | MD1100553

    Original file (MD1100553.rtf) Auto-classification: Denied

    On 12 Apr 2001, the Separation Authority directed that the Applicant be separated from the Marine Corps with an Under Other Than Honorable Conditions discharge due to Misconduct (Commission of a Serious Offense), with a separation code of HKQ1 (involuntary separation for misconduct - commission of a serious offense, administrative board waived). Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and...

  • NAVY | DRB | 2008_Navy | ND0800335

    Original file (ND0800335.rtf) Auto-classification: Denied

    Types of Documents SubmittedRelated to Military Service: DD 214: Service and/or Medical Record: Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Substance Abuse: Criminal Records: Family/Personal Status: Community Service: References: Additional Statements From Applicant: From Representation: From Member of Congress: Other Documentation (Describe) Excerpts from USN Aeromedical Reference and Waiver Guide, Department of Veterans...

  • NAVY | DRB | 2007_Navy | ND0701252

    Original file (ND0701252.rtf) Auto-classification: Denied

    Applicant’s Request: Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive: USNR (DEP)19990621 - 19990625Active: Period of Service Under Review: Date of Enlistment: 19990626Period of enlistment: Years Months Date of Discharge:20010223Length of Service: Yrs Mths28 DysEducation Level: Age at Enlistment:AFQT: 59Highest Rank/Rate:SAEvaluation marks:Performance: 2.0(1) Behavior:2.0(1)OTA: 2.50Awards and Decorations (per DD 214): NERPeriods of...

  • USMC | DRB | 2008_Marine | MD0801683

    Original file (MD0801683.rtf) Auto-classification: Denied

    The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case by case basis to determine if post service conduct mitigates the reason for the characterization of discharge.Based on the Applicant’s post service accomplishments and good deeds, the Board determined an upgrade to “General (Under Honorable Conditions)” would be appropriate. After a thorough review of the applicant’s...

  • NAVY | DRB | 2008_Navy | ND0801012

    Original file (ND0801012.rtf) Auto-classification: Denied

    Issue 3: (Decisional) ().The Applicant contends his discharge should be upgraded based on his record of service, which was good apart from a single period of misconduct. ” 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. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating...

  • NAVY | DRB | 2008_Navy | ND0800992

    Original file (ND0800992.rtf) Auto-classification: Denied

    As no issues were submitted by the Applicant, the Board conducted a general review of the discharge and discharge process. Therefore, relief is denied.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 Pertinent Regulation/Law A. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical...