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USMC | DRB | 2008_Marine | MD0801417
Original file (MD0801417.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080618
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)     20000719 - 20010916     Active:  

Period of Service Under Review:
Date of Enlistment: 20010917     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070531      H ighest Rank:
Length of Service : Y ea rs M on ths 18 D a ys
Education Level:        AFQT: 42
MOS: 0151
Proficiency/Conduct M arks (# of occasions): ( ) / 3.7 ( 11 )       Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (Iraq) (Kuwait) AFEM NUC PUCN GCM

Periods of CONF : 20050404-20050421; 20050627-20050904; 20050915-20051115

NJP:
- 20030124:      Article 92 (Failed to obey order)
         Awarded : Susp ended:

- 20040116 :       Article 92 ( Failed to obey order )
         Awarded : Susp ended:

- 20040722 :      Article 9 1 ( Disrespectful to a non-commissioned officer)
         Awarded : Susp ended:

SCM: CC:

SPCM:

- 20050825 :       Art icle 92 (Violate a lawful order), 6 specifications
         Article 128 (Assault ) , 2 specifications
         Sentence : BCD; RIR to E1, CONF 180 DAYS

Retention Warning Counseling :

- 20021220 :       For failure to display sound judgment required by all Marines by your continuous pattern of misconduct, specifically, disrespect towards an NCO, sleeping on guard post, and U A.




Retention Warning Counseling (cont) :

- 20031126 :       For failure to display sound judgment required by all Marines of your grade by violating Article 92 and Article 86 of the UCMJ. Specifically, not following orders and bringing required personal and military clothing equipment to CAX 2-04, 25 Oct to 15 Nov 2003. You failed to have the cold weather gortex clothes for the field and were unable to perform your duties a Marine. Also you were not at the appointed place of duty 0630, 15 November 2003. You were directed to be at the Bn S-1 and were not found until 0830, 15 Nov.

- 20050318 :       For the revocation of my base driving privileges.

- 20050324 :       For your receipt of a Military Protection Order.

Types of Documents Submitted/reviewed

 Related to Military Service:
DD 214:      Service / 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 Congress member :

Other Documentation :

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 .

D . T he 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 92 and Article 128 .



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

Applicant’s Issues

 1 . Treatment for service-connected conditions , including Post-Traumatic Stress Disorder (PTSD) .
2 . Wife’s actions mitigate his misconduct.

Decision


 Date: 20 0 9 0212            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 .

Although the NDRB can not grant clemency for the purposes of permitting the Applicant to obtain treatment at through VA, the NDRB advises the Applicant the VA announced in January 2008 a special access for VA enrollment available to combat veterans discharged under other than dishonorable conditions. The NDRB specifically advises the Applicant the VA determines the eligibility for enrollment independent of the Applicant’s characterization of service as determined by the Marine Corps. The Applicant is advised to contact his local VA for information. Alternately, he can call 1-877-222-8387 or visit http://www1.va.gov/opa/Is1/1.asp for more information.
: ( ) . The Applicant contends he is entitled to clemency because the action of his wife at the time mitigates his misconduct. Specifically, the Applicant contends his wife falsely accused him, stole money from him and misused his social security number. 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 four retention warnings, three NJPs and one SPCM for violations of the Uniform Code of Military Justice (UCMJ): Article 92 (Disobeying a lawful order); Article 92 (Disobeying a Military Protection Order); and Article 128 (Assault consummated by battery). 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 Applicant was convicted of beating his wife on two occasions. The NDRB rejects the Applicant’s contention as being without merit. H is wife’s conduct in no way justifies his assaults against her and he present ed no further documentation for the NDRB to review . The NDRB determined clemency is not warranted and the awarded discharge characterization was appropriate.

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


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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