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USMC | DRB | 2009_Marine | MD0900069
Original file (MD0900069.rtf) Auto-classification: Denied

ex-, USMCR
Current Discharge and Applicant’s Request
Application Received: 20081008
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:         NONE              Active:  

Period of Service Under Review:
Date of Enlistment: 19980831     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20041020      H ighest Rank:
Length of Service :
         Active:  Y ea rs M on ths 08 D a ys
         Inactive:        Y ea rs M on ths 12 D a ys
Education Level:        AFQT: 34
MOS: 9971
Proficiency/Conduct M arks (# of occasions): 0.0 ( ) / 0.0 ( )       Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA : 19990206 – 20011220 (1047 days)

NJP: SCM: CC: Retention Warning Counseling :

SPCM:
- 20020117 : Art icle 86 (U A), 19990206 - 20011220 ( 1047 days)
Sentence : BCD; CONF FOR 60 DAYS, FOP, RIR
CA Action: 20020523 Sentence is approved and except for BCD, or dered executed but execution of
 suspension for a period of 12 months.

Types of Documents Submitted/reviewed

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

                  - Record of Trail dated 17 January and 14 February 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 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 . 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 (Unauthorized absence).



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

Applicant’s Issues

 1. Discharge unjust due to mitigating circumstances.

Decision


 Date: 20 0 9 0205                  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 contends his discharge was inequitable i n part because his extended unauthorized absence was the result of a Marine Corps mistake and due to medical issues involving his father. First, the Applicant claims the Marine Corps lost accountability of him and never contacted him to attend Bulk Fuel School located at Fort Lee, Virginia. Secondly, the Applicant said his father was terminally ill and he needed to be home with him. 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 sev erity of the punishment imposed. The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The Applicant’s rec ord of service was marred by a S PCM fo r violation of the U niform C ode of M ilitary J ustice (UCMJ): Article 86 (U A), f rom 199 90206 to 20011220 totaling 1047 days . This violation is considered serious of fense and as such the Applicant was referred to a SPCM and subsequently discharged with a “Bad Conduct” discha r ge .

Upon reading the S PCM Record of Trial, the Applicant testified “After MCT, sir, I signed the orders stating that I should go to my MOS school and arrive on February the 6 th . Instead, I went to the airport and flew home. The Magistrate Judge (MJ) then asked why the Applicant flew home and remained absent from Bulk Fuel School. The Applicant stated, “At that time in my life, sir, my fiancée and I were having relationship issues and I want to go mend them before any further problems occurred. In an unsworn statement, the Applicant said, “Sir, I’d like to apologize to the Marine Corps specifically for my actions. They were unjust and a breach of my contract. ” In the Record of Trial, the applicant knowingly and deliberately remained in an unauthorized absence/deserter status for a total of 1047 days, until he surrendered to the Marine Corps. Pertaining to the Pre-trial agreement, the Ap plicant freely and with the full understanding of the consequences agreed to all provisions set forth within the document.

Relating to the medical circumstances surrounding the Applicant’s father, the Applicant wanted to stay home to be near his dad, who had been recently been diagnosed with terminal cancer. Referring again to Record of Trial , the Applicant was already in an unauthorized absence status for 3-4 months prior to finding out about his father’s medical condition. In this amount of time, the Applicant would have finished his MOS school and would have been back home serving in a reserve status and could have worked with his unit to get through any family issue. The Board would like to thank the Applicant’s father for his prior military service to his country and wish him w ell pertaining to his health.

The NDRB is authorized to consid er post-service factors in consideration if a case warrants clemency . Outstanding post-service conduct, to the extent such matters provide a basis for clemency, are co nsidered during Board reviews . Supporting documentation to help support post service clemency 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; attending or completion of higher education (official transcripts); character witness statements and documentation of a drug free lifestyle. The Applicant is advised that completion of these items alone does not guarantee clemency will be granted, as each discharge is reviewed by the Board on a case by case basis to determine if post service conduct justifies clemency . The Applicant’s case was considered under

the pertinent standards of equity to determine if any factors in this particular case merited clemency.

Besides the Applicants statement attached to the DD Form 293 and the additional references from his family and relatives, he failed to provide any documentation supporting post service accomplishments . T he Applicant only provided statements of what he has accomplished or is currently doing in his community. H owever, to warrant clemency t he Applicant s post service efforts need to be more encompassing . For example, the Applicant could have produced additional evidence as stated above to help substantiate his case as statements alone from the Applicant cannot be used as the sole justification for the Board to reach a clemency decision. T he Board determined that the Applicant did not meet the high standard required to warrant clemency.

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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