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USMC | DRB | 2008_Marine | MD0801491
Original file (MD0801491.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080408
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)    19980528 - 19981012              Active:

Period of Service Under Review:
 Date of Enlistment: 19981013      Period of Enlistment : Years Months     Date of Discharge: 20040614
Length of Service: Years Months 18 D ays Education Level:       Age at Enlistment:
AFQT: 34 MOS: 3051 Highest Rank:         Fitness Reports:
Proficiency/Conduct Marks (# of occasions): ( ) / ( )
 Awards and Decorations (per DD 214): Rifle Pistol

Periods of UA: 2000804-20000823 (20 days)
20001207-20001211 (5 days)
20010119-20010128 (10 days)
20010216-20010224 (9 days)
CONF
SPCM:   
20001116: Article 86 (Unauthorized absence), 2 specifications:
 - Specification 1: Unauthorized absence, from 31 July 2000 to 1 August 2000
- Specification 2: Failure to go to appointed place of duty
Article 107 (False official statement)
Article 111 (Physically operating a vehicle while impaired)
Article 112a (Wrongfully used methamphetamine)
Article 92 (Violation a lawful General Order)
Sentence: BCD (suspended for 12 months); CONF (90 DAYS), FORF, RIR
20010406: Article 80 (Attempted to steal 3 laptop computers)
 Article 81 (Conspired to steal 3 laptop computers)
Article 86 (Unauthorized Absence), 4 specifications:
- Specification 1: Absent himself from his place of duty on 6 December 2000
- Specification 2: Unauthorized absence from 8 - 13 December 2000
- Specification 3: Unauthorized absence from 19 - 29 January 2001
- Specification 4: Unauthorized absence from 16 - 25 February 2001
Article 91 (Willfully disobeyed a lawful order)
Article 92 (Failure to obey a lawful order), 2 specifications:
- Specification 1: On 26 November 2000
- Specification 2: On 8 December 2000
Article 121 (Larceny), 2 Specifications:
- Specification 1: Stealing 1 laptop computer
- Specification 2: Stealing 3 video cassettes
Article 134 (Breaking restriction), on 6 January 2001
Sentence: BCD, CONF (140 days) FORF.


 Retention Warnings: 1
20000406: Positive urinalysis for Ecstasy and driving while under the influence of drugs.
Types of Documents Submitted/reviewed

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

         - Record of Trial from 2, 16 November 2000
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):

Pertinent Regulation/Law

 A. Paragraph 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURTS-MARTIAL , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 June 1989 until 17 August 1995.

 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, 92, 107, 111, and 112A.


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

Applicant’s Issues

 1. Would like to become a police officer.
2. Youth and immaturity.
3. Post service conduct.
Decision


 Date: 20081002            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 .

 : ( ) . The 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. The Applicant’s record of service was marred by two Special Court-Martials. The first one took place on 16 November 2000 for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (UA); Article 92 (Failure to obey order/regulation); Article 107 (False official statement); Article 111 (Physically controlling a vehicle while impaired), and Article 112a (Wrongfully use methamphetamine.) He was convicted and sentenced to 90 days confinement, reduction in rank to Private, forfeiture of pay and awarded a “Bad Conduct Discharge” (suspended for 12 months).

The second Special Court-Martial occurred on 6 April 2001. The Applicant was charged with violations of the UCMJ: Article 80 (Attempted to steal 3 laptop computers); Article 81 (Conspired to steal 3 laptop computers); Article 86 (Unauthorized absence, 4 specifications): Specification 1 (Absent himself from his place of duty on 6 Dec 00), Specifications 2 (Unauthorized absence from 8 Dec 00 – 13 Dec 00), Spec 3 (Unauthorized absence from 19 Jan 01 – 29 Jan 01), Spec 4 (Unauthorized absence from 16 Feb 01 – 25 Feb 01); Article 9 (Willful disobeyed a lawful order); Article 92 (Failure to obey a lawful order, 2 specifications): Specification 1 (on 26 Nov 00), Specification 2 (on 8 Dec 00); Article 12 (Larceny, 2 Specifications): Specification 1 (Stealing 1 laptop computer), Specification 2 (Stealing 3 video cassettes); and Article 134 (Breaking restriction on 6 January 2000). He was convicted and sentenced to a “Bad Conduct Discharge”, 140 days confinement and forfeiture of pay.

While the Applicant may feel his youth and immaturity were the underlying cause of his misconduct, he was over 20 years old when he broke the law. His crimes were not impulsive but numerous, premeditated, and deliberate. The record clearly reflects by way of his repeated willful misconduct and incalcitrant behavior, he was unfit for further service and the honor of being called a United States Marine. 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 due to youth or immaturity. Based on the above behavior, the total and repeated disregard for the USMC Corps values, the Board determined clemency was not warranted due to youth or immaturity and an upgrade or change would be inappropriate.

 : ( ) . 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. The key word here is “Outstanding”. The Board is looking for actions that go beyond simply daily living. The Applicant did not provide a robust personal statement, supporting documentation of post service accomplishments or character witness statements to support his request for an upgrade. The Applicant's efforts need to be more encompassing. For example, the Applicant could have produced evidence of a verifiable employment record, documentation of community/church service,

evidence of a drug free existence, and certification of non-involvement with civil authorities, evidence of financial stability; statements from his references, marriage or birth certificates or copies of any training programs he successfully completed. 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. Based on the lack of documents to consider for clemency, t he Board determined an upgrade or change 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, 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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