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USMC | DRB | 2009_Marine | MD0900360

Original file (MD0900360.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20081202

Characterization of Service Received:

Narrative Reason for Discharge: AS A RESULT OF A COURT-MARTIAL

Authority for Discharge: MARCORSEPMAN

Applicant’s Request: Characterization change to:
                  Narrative Reason change to: END OF OBLIGATED SERVICE

Summary of Service

Prior Service:
Inactive: USMCR (DEP)     19920320 - 19921109     Active:

Period of Service Under Review:
Date of Enlistment: 19921110     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19980831      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 11 D a y ( s )
Education Level:        AFQT: 70
MOS: 6521
Proficiency/Conduct M arks (# of occasions): NFIR         Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:

- 19940617 :       Article 91 (Disrespect toward a superior noncommissioned officer)
                  Specification: Disres pectful in language to a MGySgt .
         Article 92 (Disobeying a lawful order)
         Article 121(Larceny and wrongful appropriation)
                  Specification: Sto le $35 from the wallet of a Sgt .
         Awarded : Susp ended:

- 19950426 :      Article 111(Reckless operation of a vehicle )
         Awarded : Susp ended:

- 19960821 :      Article 91 (Disrespect toward a superior noncommissioned officer)
         Article 91 (Willfully disobeying a noncommissioned officer)
         Awarded : Susp ended: (Suspension vacated 19960906)

SCM:

SPCM:

- 19961106 :       Article 91 (Disrespect toward a superior noncommissioned officer)
         Article 134 (Communication a threat), 2 Specifications
         Article 134 (Obliterating a public record)
         Sentence : BCD; Confinement 42 Days (Pre-trial confinement 19960925-19961105 (41 days))
         - Conviction affirmed but part of sentence ( BCD ) set aside on 27 March 1998.

CC:

Retention Warning Counseling :

- 19940510 :       For conduct unbecoming a Marine resulting in your being relieved of your duties.

- 19950523 :       For your pattern of misconduct and frequent violations of the UCMJ.

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 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 s of the UCMJ, Article s 91, 92, 111, 121 , and 134.

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

Applicant’s Issues

1 . Change Reentry Code.
2 . Sentence to Bad-Conduct discharge was set aside.

Decision

Date : 2009 0312 Location: Washington D.C . R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall COMPLETION OR REQUIRED ACTIVE SERVICE .

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 this Issue.

The NDRB specifically notes the Navy-Marine Corps Court of Criminal Appeals affirmed the conviction for serious misconduct. The Applicant’s record of service also shows a pattern of serious misconduct substantiated by his three NJPs. The NDRB therefore recommends the Applicant’s Reentry Code not be changed in the future should the Applicant petition the Board for Correction of Naval Records.

: ( ) . The Applicant contends the Narrative Reason shown on his DD Form 214 improperly shows his discharge was ordered by a court-m artial. 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 retention warnings, three NJPs and one SPCM for violations of the Uniform Code of Military Justice (UCMJ): Article 91 (Disrespect toward a superior noncommissioned officer); Article 91 ( D isobeying a noncommissioned officer); Article 92 (Disobeying a lawful order); Article 111 (Reckless operation of a vehicle); and Art icle 121 (Larceny and wrongful appropriation) . These are considered serious offenses which could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentence by a special or general court - martial. The command did not refer the Applicant for a court - martial but opted instead to retain the Applicant on active duty . The Applicant was later convicted by a SPCM for violation of Article 91 (Disrespect toward a su perior noncommissioned officer), Artic le 134 (Communicating a threat), and Article 134 (Obliterating a public record). The Applicant was senten ced, in part, to a Bad Conduct d ischarge which was later set aside by the Navy-Marine Corps Court of Criminal Appeals. The NDRB concurs with the Applicant’s contention his Narrative Reason for Separation should not indicate his discharge was ordered by a Court-Martial ; therefore the Narrative Reason should be changed to “Completion of Required Active Service . ”

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 the discharge was equitable but improper.

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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USMC | DRB | 2009_Marine | MD0900360

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