Search Decisions

Decision Text

USMC | DRB | 2008_Marine | MD0800318
Original file (MD0800318.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20071127
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: USMCR (DEP)     19991221 - 20000215              Active:         
Period of Service Under Review:
 Date of Enlistment: 20000216               Period of enlistment : Years Months             Date of Discharge: 20070120
Length of Service : Yrs Mths 27 D ys      Education Level:         Age at Enlistment:       AFQT: 32
MOS: 6113        Highest Rank:                     Fitness reports:
Proficiency/Conduct marks (# of occasions):      ( )/ ( )
 Awards and Decorations ( per DD 214): Rifle , Pistol , , ,

Periods of UA / CONF :

NJPs :    
         20020710 : Art(s) 89 (Disrespect toward commissioned officer)    
Awarded -                          Susp -
         20020624 : Art(s) 86x4 (UA) .      Awarded - , , ,        Susp -

S CMs :   
        
SPCMs:  
         20021004 : Art(s) 92 (Failure to obey an oder); 128 ( Assault ) . Sentence - BCD; CONF, FOP .
CC:      

6105 Counseling :
        
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. Clemency

Decision


 Date: 20 08 0509             Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall COURT MARTIAL .
Discussion

 Issue 1 (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. Prior to the Applicant’s Bad Conduct Discharge, he was awarded two non - judicial punishments for violations of UCMJ Articles 86x4 (Unauthorized Absence) and 89 (Disrespect to a commissioned officer). Additionally, the Applicant did not send any documentation to support post service conduct and professional accomplishments. The NDRB found the evidence of record did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offense for which the discharge was awarded. In addition, the reason for discharge, convicted by special court-martial, is most appropriate. Based on this information the Board determined an upgrade is not warranted.

In reviewing discharges, the Board presumes the Government conducts its affairs with regularity 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 that

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 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

Similar Decisions

  • NAVY | DRB | 2008_Navy | ND0800282

    Original file (ND0800282.rtf) Auto-classification: Denied

    An upgrade to General under honorable conditions would be inappropriate.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, the Board found...

  • USMC | DRB | 2008_Marine | MD0800083

    Original file (MD0800083.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) DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW...

  • USMC | DRB | 2008_Marine | MD0800220

    Original file (MD0800220.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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) DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE...

  • USMC | DRB | 2008_Marine | MD0800820

    Original file (MD0800820.rtf) Auto-classification: Denied

    Vacated 20010307.SCMs: 1 20010518: Article 92 (Failure to obey order), 3specifications, Article 95 (Fleeing apprehension), Article 134 (Breaking restriction).Sentence - RIR (E2), FOP ($300 for 1 month), Confinement (29 days). 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...

  • USMC | DRB | 2008_Marine | MD0800757

    Original file (MD0800757.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, Medical and Service Record Entries, Court-Martial proceedings, Discharge Process and evidence submitted by the Applicant, the Board found clemency was not warranted and the sentence awarded the Applicant...

  • USMC | DRB | 2008_Marine | MD0800911

    Original file (MD0800911.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated to Military Service: DD 214: Service and/or Medical Record: Other Records: - Record of Trial dated 29 July 1994 Related to Post-Service Period: None DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. Clemency. ” 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...

  • USMC | DRB | 2008_Marine | MD0801544

    Original file (MD0801544.rtf) Auto-classification: Denied

    Based on similar cases reviewed by the NDRB and the awarded discharge characterization those cases received for offenses of greater, and lesser, severity, the NDRB determined clemency was warranted in the Applicant’s case. However, the record of misconduct prior to his SPCM, documented by the NJP and SCM, limited the NDRB’s clemency to upgrading the characterization of service from “Bad Conduct” to “Under Other Than Honorable” conditions. The Board determined based on this overall...

  • USMC | DRB | 2007_Marine | MD0701136

    Original file (MD0701136.rtf) Auto-classification: Denied

    Susp - ,.19910830: Art 86. 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 clemency was not warranted and the sentence awarded the Applicant at his court-martial was appropriate for the offenseshe committed. ” Additional Reviews : Subsequent to a document review, former members are eligible for a personal...

  • USMC | DRB | 2008_Marine | MD0800533

    Original file (MD0800533.rtf) Auto-classification: Denied

    ]6105 Counseling: 19890414:For failure to follow instructions, and failure to adhere to rules and regulations.19890630:For substandard performance and conduct in particular, writing checks with insufficient funds in your account and poor judgment.19910228:For financial irresponsibility based on your conviction after appearing in the Onslow County Court on 19910225 for writing two worthless checks totaling $29.02 in which you were found guilty Types of Documents Submitted/reviewedRelated to...

  • USMC | DRB | 2008_Marine | MD0800543

    Original file (MD0800543.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. Due to the lack of documentation submitted by the Applicant to support an upgrade based on post service conduct the Board determined relief was not warranted. After a thorough review of the available evidence,...