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USMC | DRB | 2008_Marine | MD0800828
Original file (MD0800828.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080219
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)     19880723 - 19890625              Active:

Period of Service Under Review:
Date of Enlistment: 19890626      Period of E nlistment : Years Months     Date of Discharge: 19950120
Length of Service : Yrs Mths 25 D ys      Education Level:         Age at Enlistment:       AFQT: 37
MOS: 0311         Highest Rank:   Fitness R eports:
Proficiency/Conduct M arks (# of occasions):       ( ) / ( )
 Awards and Decorations ( per DD 214): Rifle NDSM SASM KLM NUC

Period s of UA /CONF : UA: 19930503-19930520 (17 DAYS) ;
CONF: 19921202-19921208 (6 DAYS) ,
19930408-199304 29 (22 DAYS) .

Loss Time per DD Form 214: 19930714-19950119 (554 DAYS) .

SPCMs:  
19930408 : Art icle 8 6 ( Unauthorized absence), 2 specifications.
         Spec 1: (Absent without authority ), 19910831 to 19910917 (17 DAYS ) .
         Spec 2: (Absent without authority ), 19910918 to 19921026 (403 DAYS ) .
         Sentence : BCD RIR E-1 FOP CHL FOR 45 DAYS .
6105 Counseling : 5
19900403 : For lackadaisical attitude toward duties and responsibilities of a Marine sentry IAW CoO P5510.1B.
         19901217 : For bad attitude, insubordinate conduct, lack of motivation.
19910523 : For unsatisfactory performance of duty while assigned to maintenance duty.
19921130 : For alcohol abuse, specifically being command referred for alcohol treatment.
19930625 : For being UA from 19930503 to 19930520.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “ 19890626 ”
         “ 05 06 25 ”
        
The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.





Types of Documents Submitted/reviewed

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

- Record of Trial dated 24, 25 February, 18 March, and 8 April 1993.

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) : Various certificates:
-        Orange County Public Schools for Emergency Medical Technician dated May 2006;
-        Division of State Fire Marshall from August 2006;
-        Central Florida Fire Academy dated September 2006;
-        National Registry Emergency Medical Technicians dated April 2007.



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

Applicant’s Issues

 1. Employment opportunities.
2. Mitigating circumstances led to misconduct.
3. Clemency .

Decision


 Date: 20080821             Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall COURT-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 , specifically the paragraph concerning regarding .

Issue 2: This is not an issue which the NDRB has the authority to consider in the case of bad conduct discharges resulting from a Special Court-Martial . The record of evidence clearly shows that the Applicant’s concerns regarding the circumstances that lead to his misconduct were carefully examined and considered during the Court- M artial and again during the Appeal process. The NDRB may not alter the judgment of a court-martial, except the discharge or dismissal awarded may be changed for purposes of clemency.

: ( ) . 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 which reduces the severity of the punishment imposed.

The NDRB is authorized to consid er post-service factors in consideration if a case warrants clemency . Outstanding post-service conduct, to the extent such matters provide a basis for clemency, are co nsidered during Board reviews . Supporting documentation to help support post service clemency include s , but is not limited to: a verifiable continuous employment record ; documentation of community or church service ; certification of non-involvement with civil authorities ; evidence of financial stability or letters of good standing from banks, credit card company’s, or other financial institutions; character witness statements; and documentation of a drug free lifestyle. The Applicant is advised that completion of these items alone does not guarantee clemency will be granted, as each discharge is reviewed by the Board on a case by case basis to determine if post service conduct justifies clemency . The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. As documentation supporting post service, t he Applicant provided certificates from the Orange County Public Schools for Emergency Medical Technician dated May 2006; the Division of State Fire Marshall from August 2006; the Central Florida Fire Academy dated September 2006; and the National Registry Emergency Medical Technicians dated April 2007. The Board applauds the Applicant’s efforts however, they need to be more encompassing. For example, the Applicant could have produced additional evidence as stated above to help substantiate his case as statements alone from the Applicant cannot be used as the sole justification for the Board to reach a clemency decision.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, 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 .





Pertinent Regulation/Law

 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 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 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 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 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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