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USMC | DRB | 2008_Marine | MD0800839
Original file (MD0800839.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080221
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)     20030930 - 20040907              Active:
Period of Service Under Review:
 Date of Enlistment: 20040908               Period of enlistment : Years Months             Date of Discharge: 20060512
Length of Service : Yrs Mths 10 D ys      Education Level:         Age at Enlistment:       AFQT: 52
MOS: 9900        Highest Rank:                     Fitness reports:
Proficiency/Conduct marks (# of occasions):      ( )/ ( )
 Awards and Decorations ( per DD 214): Rifle Pistol

Periods of UA / CONF : 20050110-20060403 (443 -days )

NJPs :    

S CMs :   

SPCMs:  

CC:      

6105 Counseling :
         20060511 : For assignment of RE-4 reenlistment code.

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) Application to BCNR as well as letters from BCNR directing applicant to apply to NDRB first.

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

Applicant’s Issues

 1. Reenlistment Opportunities.
2 . Discharge Implications .
3 . Post Service Conduct.

Decision

 Date: 20 08 0 606             Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall .
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 .

: ( ) . The Applicant contends he did not fully understand the implications of his discharge at the time of his separation. He notes if he had known he would be unable to reenlist with an RE-4 reenlistment code, he would not have accepted a separation in lieu of trial by court martial. Furthermore, he feels he has been sufficiently punished and he believes he is eligible for an Entry Level discharge.

The Board noted the Applicant signed a lengthy document titled "Advice Concerning Separation In Lieu of Trial (SILT)" on 1 May 2006, acknowledg ing the Detailed Defen s e Counsel , Capt Boynton, explained the implications of accepting a separation in lieu of trial by court martial . Paragraph ( d ) of that document clearly states "An OTH [discharge under other than honorable conditions] discharge has several adverse effects…An OTH discharge may cause me difficulty in obtaining a civilian or government job." The Applicant’s signature also indicates the request to separate in lieu of a trial was made freely and voluntarily.

In regards to the Applicant's claim of sufficient punishment, the Board noted his enlistment was marred by a 449 -day period of Unauthorized Absence which was terminated by apprehension. T he Applicant requested discharge for the good of the service to escape trial by court-martial. Violations of the U niform C ode of M ilitary J ustice, Article 86 carry a maximum penalty of a Dishonorable Discharge and 1 .5 year s of imprisonment for each specification , if adjudicated by a court martial. T he Applicant had the elements of the offense for which he was cha rged fully explained by counsel, he admitted guilt to the offense and acknowledged a complete understanding of the negative consequences of his actions. The Applicant opted for a separation in lieu of a trial by court-martial and received a discharge Under Than Honorable Conditions. An Entry Level discharge is only authorized when a member is notified he is being processed within his first 180 days of continuous active military service . The Applicant does not meet this criterion.

The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service. The Board determined an upgrade is not warranted.

: ( ) . There is no law or regulation which allows an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge if such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. The Applicant states he volunteers his time to assist his local Marine Corps recruiting office h owever, this is the only issue he discusses. More sufficient evidence of post-service conduct could have included documentation showing continuing educational pursuits, employment records, community service and certificates of non-involvement with civil authorities.
A fter a complete review of the Applicant’s Summary of Service, Service R ecord, Discharge Process and evidence submitted by the Applicant, the Board determined the post-service conduct was not sufficient to warrant an upgrade. The Board determined in light of the nature and seriousness of the Applicant’s misconduct and

Pertinent Regulation/Law

 A. Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY 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 86 .

 D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(b), 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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