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USMC | DRB | 2008_Marine | MD0801297
Original file (MD0801297.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080528
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) 20010306 - 20010326                Active:

Period of Service Under Review:
 Date of Enlistment: 20010327      Period of Enlistment : Years Months     Date of Discharge: 20040217
 Length of Service: Years Months 11 D ays        Education Level:         Age at Enlistment:       AFQT: 43
 MOS: 9971         Highest Rank:    Fitness Reports:
Proficiency/Conduct Marks (# of occasions):      ( ) / 1.6 ( )
 Awards and Decorations (per DD 214): Rifle Pistol

Periods of UA/CONF: 33 days, 20010713 – 20010815
363 days, 20010930 – 20020928
45 days CONF

 NJPs:
      20010907: Article 86 (Unauthorized absence)
Sentence: 7 days CCU, forfeiture of $272.99 for one month
 SCMs: NONE
SPCMs:
20021212: Article 86 (Unauthorized absence)
 Sentence: BCD; Confinement for 45 days; reduction to PVT.

 6105 Counseling: 1
20010907: For violation of Art 86.
Types of Documents Submitted/reviewed

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

         - Record of Trial from 12 December 2002.
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 NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

 1. Better provide for his wife and himself.
2. Youth and immaturity.
3. Post service conduct.

Decision


 Date: 20080925            Location: Washington D.C.        R epresentation :

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

 : ( ) . The Applicant implies in his request that he would like the characterization of his discharged changed to improve his employment opportunities to better provide for his wife. 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 .

: ( ) . T he Applicant contends his youth and immaturity mitigates his misconduct. 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. With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency (leniency). 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. The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The reason for discharge, convicted by special court-martial, is appropriate.

While the Applicant may feel his youth and immaturity were the underlying cause of his misconduct, the evidence of record does not demonstrate the Applicant was not responsible for his conduct or that he should not be held accountable for his actions based on youth or immaturity. The Applicant’s record of service was marred by one 6105 Counseling and a non-judicial punishment for violation of the Uniform Code of Military Justice, Article 86 (Unauthorized absence) for 33 days and a Special Court Martial for violation of Article 86 (Unauthorized absence), for 406 days. As a result, he received a Bad Conduct Discharge, 45 days confinement and reduction in grade to Private.

The Applicant requested for his discharge to be upgraded to “Honorable”. When the quality of a Marine’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under “Honorable” conditions. The Applicant states for the one year and nine months he did serve, he was proud to be a Marine and did not get into trouble. Of the twenty one months he served, he was UA for a total of fourteen months. The Applicant was outside of military control longer than he was under it. The fact remains, the Applicant’s service did not meet the standards of accepted conduct and performance expected of a Marine. The Board determined an upgrade or change would be inappropriate.

 : ( ) . The Applicant claims that now as a civilian he is striving to be a good man. 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. 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 during Board reviews. Documentation to help support a post service conduct upgrade includes, 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; documentation of a drug free lifestyle; and character witness statements. 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 did not provide any documentation for the Board to consider. To warrant an upgrade t he Applicant's efforts 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. Based on the lack of post service documentation, t he Board determined clemency was not warranted and 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

Pertinent Regulation/Law

 A Marine Corps Separation and Retirement Manual, MCO P1900.16F , Paragraph 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURT-MARTIAL , 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. 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, provided 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 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 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.
Employment/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 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 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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