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USMC | DRB | 2008_Marine | MD0800533
Original file (MD0800533.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080103
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

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

Summary of Service

Prior Service:
Inactive: USMCR (DEP)     19871230 - 19980808              Active:

Period of Service Under Review:
Date of Enlistment: 19980809      Period of E nlistment : Years Months    Date of Discharge: 19930610
Length of Service : Yrs Mths 02 D ys      Education Level:         Age at Enlistment:       AFQT: 34
MOS: 3531 Highest Rank:         Fitness R eports:
Proficiency/Conduct M arks (# of occasions): ( )/ ( )
 Awards and Decorations ( per DD 214): Rifle , Pistol ,

Periods of UA / CONF : CONF: 19910726-19910901 38 days,
                           19910124-19920217 25 days.

NJPs :    
19890311 :         Art icle 86 (Fail to go at the time prescribed to a morning formation).
         Awarded : , . Susp - . Suspension vacated 19890808.
19 8 90808 :         Art icle 86 (Absent from appointed place of duty).
         Art icle 92 (Dereliction of duty).
          Awarded : . Susp -
19910 3 26 :         Art icle 92 ( Failure to obey an order or regulation). Wrongfully dr o ve on base/state revocation, violation
of BO 5560.2J .
         Awarded : , . Susp - .

S CMs :   

SPCMs:  
19910726 :         Art icle 108 (Sold military gear without authority) , 2 specifications .
         Art 121 (Wrongfully appropriated military gear) , 2 specifications.
         Sentence : RIR FOP CONF FOR 45 DAYS (19910726-19910901 38 days) .
          CA Action , 19911010 : Sentence approved and ordered executed.
19920212 :         Art icle 86 ( Unauthorized absence), 2 specifications :
Specification 1 : Fail ure to go at a time prescribed to an appointed place of duty.
          Specification 2 : Unauthorized absence from 1201, 19920102 until 1800, 19920123 (2 days, 5
hours, 59 minutes).
          Art icle 91 (Willfully disobeyed a lawful order) , 2 specifications .
         Sentence : BCD; CONF FOR 4 MONTHS (19910124-19920217 25 days) , FOP .
          CA Action , 19920608 : Sentence approved and except for the BCD, will be executed, but that part of the sentence extending to confinement in excess of 30 days is suspended for a period of 12 months from the date of trial.



CC:      
         19910225 : Onslow County Court for writing two worthless checks totaling $29.02. No further information found in
service record. [Extracted from Counseling dated 19910228, NAVMC 118 (11).]

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/reviewed

 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 .
2. Employment opportunity.
Decision


 Date: 20 08 0814             Location: Washington D.C .         R epresentation :

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

 Issue 1 : (Equity) RELIEF NOT WARRANTED . With respect to a discharge adjudged by a court-martial case, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts and the action of the NDRB is restricted to upgrades based on ly 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. 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, t he Board found clemency was not warranted and the sentence awarded the Applicant at his court-martial was appropriate for the offense s he committed.

Issues 2 : ( ) . 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 , specifically the paragraph concerning regarding .


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 June 1989 until 17 August 1995.

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 . 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 .



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 or is referred to a court-martial fo r 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 other medical related reasons. ” 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 special 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. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

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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