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USMC | DRB | 2009_Marine | MD0900866
Original file (MD0900866.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090227
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)       20031209 - 20040218     Active:  

Period of Service Under Review:
Date of Enlistment: 20040219     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080429      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 11 D a y ( s )
Education Level:        AFQT: 50
MOS: 0351
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF : UA/ 20060829-20070606 (281 days), 20060707-20060719 (13 days), 20060625-20060629 (4 days), 20060702-20060703 (2 days), 20060704-20060705 (1 day), 20060622-20060623 (1 day), 20050319-20050320 (1 day). CONF/ 20070607-20070721 (49 days), 20060720-20070812 (24 days).

NJP:
- 20050406 :      Article 86 (UA , 20050319-20050320, 1 day)
         Awarded : Susp ended:

SCM:

- 20060803 :       Art icle 86 (UA), 5 specifications
                  Specification 1: 0730, 20060622- 1100, 20060623 (1 day, 3 hr, 30 min)
                  Specification 2: 0730, 2006062 5 - 1100, 2006062 9 ( 4 day s , 3 hr, 30 min)
                  Specification 3 : 20060 702- 20060623 ( 2 day s )
                  Specification 4: 0730, 20060 704- 13 00, 20060 0705 (1 day, 5 hr, 30 min)
                   Specification 5: 20060707- 20060719 (13 days)
          Sentence : (20060720-20070812 , 24 days)

SPCM:

- 20070720 :       Art icle 86 (UA, 20060829-20070606 , 281 days , apprehended)
         Sentence : BCD; CONF 60 days (20070607-20070721 , 49 days)

CC:

Retention Warning Counseling :
- 20070720 : For his SCM.


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 :



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

Applicant’s Issues

 1. Wants to reenlist in the military.
2. C ommanding officer p romised the Applicant he would receive a g eneral d ischarge.
3. More mature, has remarried, and has a son.

Decision

 Date : 20 0 9 0618            Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall COURT-MARTIAL .
Discussion

With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency. 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 NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharg e if such change is warranted. 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. Clemency is an act of leniency that reduces the severity 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 record of service was marred by one NJP for violation of the Uniform Code of Military Justice (UCMJ): Article 86 (UA, 1 day); one S ummary Court-Martial (SCM) for violation of the UCMJ: Article 86 (UA, 5 specifications); and o ne S pecial Court-Martial (SPCM) for violation of the UCMJ: Article 86 (UA more than 30 days, 281 days, apprehended) in which he was sentenced to a Bad Conduct Discharge and 60 days confinement. At the SPCM, the Applicant was represented by counsel.

: The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other branch of the Armed Forces, and 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 NDRB 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.

: ( ) . The Applicant claims he was promised by h is commanding officer ( CO ) that he would received a General discharge . The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that his CO promised the Applicant a General discharge. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.

Issue 3 : ( ) . The Applicant states he “was a child back then” but now understands what he did was wrong, is more mature, and is remarried with one son. While the NDRB applauds the Applicant for taking responsibility for his actions and improved maturity, he provided no post-service documentation for review. The Applicant’s statements alone are not sufficient to determine whether or not clemency is appropriate.

 Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, and d ischarge p rocess, the Board found Therefore, the awarded characterization of service shall remain Bad Conduct Discharge and the narrative reason for separation shall remain Court-Martial.

The Applicant remains eligible for a personal appearance for a period of fifteen years from the date of his discharge. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews and Automatic Upgrades.

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. 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 (UA more than 30 days) .

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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB ’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 NDRB 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 NDRB 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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