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USMC | DRB | 2008_Marine | MD0801490
Original file (MD0801490.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080925
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)     19970509 - 19981006              Active:

Period of Service Under Review:
Date of Enlistment: 19980107     Period of E nlistment : Years Months     Date of Discharge: 19 991020
Length of Service : Y ea r M on ths 24 D a ys        Education Level:        Age at Enlistment: 21     AFQT: 37
MOS: 9971         Highest Rank:    Fitness R eports:
Proficiency/Conduct M arks (# of occasions):                /
Awards and Decorations ( per DD 214): Rifle Pistol

Periods of UA / CONF : U A from 19980414-19980512 (28 days)
UA from 19980517-19980520 (3 days)
Confinement: 4 days pre-trial , 27 days .
NJP : S CM : CC: NONE 6105 Counseling :

SPCM:   
19980717 : Art icle 86 (U A), 2 specifications:
         - Spec ification 1: U A from 19980414-19980512 ( 28 days)
         - Spec ification 2: U A from 19980517-19980520 (3 days)
 Sentence : BCD; CONF 27 DAYS. Forf of $617.00 for two months .
Types of Documents Submitted/reviewed

 Related to Military Service:      DD 214:          Service and/or Medical Record:            Other Records:
Record of Trail for Special Court-Martial
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) :
Pertinent Regulation/Law

A. Paragraph 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURT-MARTIAL , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 August 1995 until 31 August 2001.

 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 .


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

Applicant’s Issues

 1. Desires to enlist in the Army.
2. Recruiter fraud.
3 . Youth and immaturity.
4. Isolated incident.

Decision


 Date: 20 08 10              Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall SECRETARIAL AUTHORITY .
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 s , regarding .

: ( ) . The Applicant claims he was mislead by his recruiter and had two Marine Corps contracts (the Board assumed these were supposed to be simultaneous contracts) - one for reserve duty and one for active service. 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 servi ce record indicates he entered the Delayed Entry Program (DEP) on 5 May 1997 whereby he enlisted in the USMC Reserve for 8 years. He initial ed section 8c on his Enlistment Contract, DD Form 4/1 , agreeing to this. On 7 January 199 8 , the Applicant sign ed block 20a o f his Enlistment Contract, DD Form 4/3 , requesting to be discharged from the Delayed Entry Program and enlist ed in the Regular Component of the United S tates Marine Corps for 4 years of Active Duty service.

T he Applicant may have become confused when he signed up for the Delayed Entry Program (DEP) since it is for 8 years of reserve service. T hat agreement was superseded by his 7 January 1998 request to be discharged from the DEP and enlist in the Regular USMC Component with a 4 year obligation in the Active Duty and 4 years as a Reserve member . The Applicant did not produce any documentation to support h is claim he had two contracts or that his recruiter mislead him. However, the Board felt between the contracts he signed it was clear the Applicant became confused, especially when the obligated total time under both contracts was for eight years .

The Applicant stated his discharge was based on youth and immaturity and involved one isolated incident of misconduct . Despite a service member’s prior record of se rvice, certain serious offenses, even though isolate d, warrant separation from the n aval service in order to maintain proper order and discipline . The characterization of service is a description of the total service provided during the member’s enlistment. The Applicant’s service was marred by his violation of the U niform C ode of M ilitary J ustice (UCMJ): Article 86 (UA), 2 specifications . The command exercised a seldom used rule contained in the Rules for Court Martial, Rule 1003 which states “if an accused is found guilty of two or more offenses for none of which a dishonorable or bad-conduct discharge is otherwise authorized, the fact that the authorized confinement for these offenses totals 6 months or more shall, in addition, authorize a bad-conduct discharge and forfeiture of all pay and allowances”; this Rule was used as the discharge basis in this case.

Although t he Applicant’s conduct reflects the Applicant’s failure to meet the requirements of the Naval Service , he claims his lack of understanding of the differences between Marine Reserve Service in the DEP, which he originally signed up for, and the subsequent active service contract he agreed to, may have contributed to his misconduct. When he went UA for 28 days while


home on boot camp leave, he was angry and wanted to correct what he saw as an injustice , or recruiter fraud. The Applicant became so upset at what he perceived to be an injustice he contacted his Congressman and was immediately advised by him to
return to military control. The Applicant did so, but quickly became fru strated when he was told he was not a Marine Corps Reservist but an Active Duty Marine; as a result he went UA again. After 3 days, he voluntarily returned to his unit. However, in his record of trial as an explanation for his misconduct he states he was very young, homesick and felt the USMC was just not for him.

Regardless of why he went UA, t he total time of his two UA periods was 31 days and, as stated above, the authorized confinement for these offenses totals 6 months or more which also authorized a “ B ad C onduct D ischarge (BCD) ” . The Board noted t he Applicant was in a school environment where minor infractions are punished quite severely to serve as an example to all the students. It is highly unlikely that a Marine in the Fleet Forces would have been subject to a Special Court-Martial and received a “ BCD ” for a UA period of th is limited length. It should be noted h e had no other counseling entries, non - judicial punishments or disciplinary action in his record . The Applicant’s service was so short in duration he did not even receive PRO/CON marks.

The Applicant acknowledges his error in judgment, and expresses profound regret. A more mature adult now, he desires to join the US Army. He has taken the ASVAP and is ready to move forward. The Board thought i t was unduly harsh to subject a young man to life long punishment for an impulsive infraction of this limited nature . The Board took into consideration the
confusion he had over the initial USMC Reserve DEP contract and his Active Duty contract and that the Applicant voluntarily surrendered after both UA periods . Since t he Applicant ’s misconduct was within 6 months of his joining the USMC , he could have qualif ied for an uncharacterized entry level separation . However, it is unknown why the command did not take this course of action.

The Board determined in light of the circumstances the appropriate and equitable correction to the discharge would be to change the awarded “BCD” to an “Uncharacterized” and authorize the narrative reason to reflect “Secretarial Authority”.

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, 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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