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USMC | DRB | 2008_Marine | MD0801154

Original file (MD0801154.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20080501

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) 19990930 - 19991215                Active:

Period of Service Under Review:
Date of Enlistment: 19991216      Period of E nlistment : Years Months     Date of Discharge: 20060810
Length of Service : Y ear s M on ths 08 D a ys     Education Level: A ge at Enlistment:
AFQT: 37          MOS: 0311         Highest Rank: Fitness R eports:
Proficiency/Conduct M arks (# of occasions):       ( ) / ( )
Awards and Decorations ( per DD 214): Rifle , Pistol , ,

Periods of CONF : 20031212-20040128 (47 Days)

NJP :
- 20010220 : Art icle 92 (Failure to obey)
Awarded : ,     Susp ended:

- 20011126 : Art icle 92 (Failure to obey)
Awarded : , Susp ended:

         - 20020725 : Article 92 (Failure to obey)
Article 134 (Dishonorably failing to pay debt)
         Awarded : FOP, RESTR, EPD Susp ended: F OP

- 20020913: Article 92 (Failure to obey)
Awar ded : FOP, RESTR, EPD Suspended: None

         - 20030309: Article 128 (Assault)
         Awarded: RIR, FOP Susp ended: None

S CM : CC:        6105 Counseling :

SPCM:
- 20031211 : Art icle s 128 (Strik ing an NCO)
Article 134 (Wrongful Indecent Act)
Sentence : BCD; RIR E1, CONF 60 days

                                            Types of Documents Submitted /reviewed

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

         - Record of Trial from 11 December 2003

Related to Post-Service Period:
         Employment:                        Finances:                          Education /Training :

Related to Post-Service Period (cont):

         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) :

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 1 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 .

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 .

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

Applicant’s Issues

1. Clemency.
2 . Service b enefits.
3 . Unjust discharge.
4 . Post service conduct .
Decision

Date: 20 08 1106 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) RELIEF NOT WARRANTED . 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. 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. The Applicant’s record of service was marred by 5 NJP’s and a SPCM for violations of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey an order), Article 128 (Assault), Article 134 (Wrongful indecent act). These violations are considered serious and as a result the Applicant was given a SPCM and a warded a “Bad Conduct Discharge” for his misconduct.

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.

Issue 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 .

Issues 3-4 : (Equity) RELIEF NOT WARRANTED. The Applicant implies he was treated unfairly by his command. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support h is issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention the command treated him unfairly . As stated above in Issue 1, t he Applicant’s service was marred by 5 NJP ’s and a SPCM . A review of the record of trial and all available documentation did not support the Applicant’s claim the command treated him unfair.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation, which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, 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, is considered. Documentation to help support a post service conduct upgrade includes, but is not limited to: a verifiable continuous employment record ; marriage and children’s birth certificate (if applicable); character witness statements; 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; and documentation of a drug free lifestyle. 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.

The Applicant provided a personal statement and as evidence of post-service accomplishments. The Applicant's effor ts need to be more encompassing and documented. The Applicant could have produced additional evidence as stated in the above paragraph with the full understanding completion of these items alone does not guarantee an upgrade. The Board determined the characterization of service awarded by the Special Court -Martial was an appropriate characterization considering the time served and the UCMJ violations involved, and based on the lack of post service documentation provided an upgrade would be inappropriate.

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

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 or for any basis wherein an Other Than Honorable Discharge is authorized, 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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USMC | DRB | 2008_Marine | MD0801154

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