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USMC | DRB | 2009_Marine | MD0900230
Original file (MD0900230.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20081112
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)     19930901 - 19940627     Active:  

Period of Service Under Review:
Date of Enlistment: 19940628     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19980320      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 1 D a y ( s )
Education Level:        AFQT: 31
MOS: 3381 (Food Service Specialist)
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):

Periods of UA : 19961228 - 19970412 (105 days)
CONF: 19970413 – 19970519 (37 days)

NJP:
- 19950929 :       A rticle 86 (U A: Failure to go to the Rifle Range (dropped from detail))
         Awarded : Susp ended:

- 19961016 :       Article 86 (U A : Failure to go to appointed place of duty on 960918 and 960920)
         Awarded : Susp ended:

SPCM:
- 19970520 :       Art icle 86 (U A, from 19961228 – 19970412 (105 days))
         Sentence : BCD; FOP , RIR E-1, CONF 45 days

CC: (Pending Court date was 970505)
- 19970413 :       Offense s : Possession of Marijuana <1oz; Driving w/ suspended license; DUI; Driving on wrong side of road and Underage drinking while operating a vehicle.
         Sentence : Not available

Retention Warning Counseling :
- 19941205 :       For failure to attend scheduled formations
- 19950829: For failure to be at appointed place of duty (rifle range)
- 19950929: For NJP: Article 86
- 19961205: For NJP (pending): Articles 86 and 92
- 19960104: For failure to be at appointed place of duty (USS Peleliu)
- 19960106: For failure to be at appointed place of duty


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 P1900.16E), 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 II, Para 211, Regularity of Government Affairs , Part V, Para 502, Propriety and Para 503, Equity .

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 (U A) .



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

Applicant’s Issues
1. Unjust d ischarge .

Decision

 Date: 20 0 9 0218      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 he should be granted clemency because he took his discharge voluntarily and the command kept him from being promoted to Corporal. 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 six retention warnings, two NJP’s, a Special Court-Martial for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (U A) . In addition, the Applicant had pending civilian charges for possession of Marijuana (less than 1oz ); driving with a suspended license; a DUI; d ri ving on wrong side of road and u nderage dri nking while operating a vehicle, which led to his arrest and known deserter status from the Marine Corps. These violations are considered serious offenses. The Applicant did ask for a Bad Conduct D ischarge at his Court-Martial and received it as part of his sentence. Even though the Applicant voluntarily asked for a Bad Conduct discharge, the Magistrate Judge is not compelled by law to give the Applicant what he asks for. The Magistrate Judge will sentence the Applicant based on the circumstances in which a crime was committed. Somehow, the applicant feels he did the Marine Corps a favor by asking for a Bad Conduct discharge, which is not the case. Also, the Applicant ’ s record of service speaks volumes on why the applicant was not promoted to Corporal. His numerous unauthorized absences throughout his enlistment did not instill confidence in his senior leadership, that he had the qualities needed to lead younger Marines. Promotion is a privilege, not a right. The Board determined clemency would be inappropriate.
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; character witness statements; attending or completion of higher education (official transcripts) 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 Applicant s statement on the DD Form 293, he failed to provide any additional documentation and evidence on his behalf. To warrant clemency, the Applicant’s post service efforts need to be more encompassing. 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. The Board determined the characterization of service received, “Under Other Than Honorable Conditions”, was an appropriate characterization considering the length of service and the UCMJ violations involved, and based on the lack of post ser vice documentation provided clemency would be inappropriate . Should the Applicant feel at some later time his post service conduct is worthy of personally presenting to the NDRB there are organizations, such as the American Legion, willing to provide guidance and assistance in preparing such a presentation.

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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