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USMC | DRB | 2009_Marine | MD0901235
Original file (MD0901235.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090407
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)       19930311 - 19931013     Active:  

Period of Service Under Review:
 Date of Enlistment: 19931014     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19960912      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 30 D a y ( s )
Education Level:        AFQT: 70
MOS: 0300
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle Pistol

Periods of CONF : 19950925 – 19950927 (2 days); 19951206 – 19960314 (100 days)

NJP:
- 19950504 :      Article 134 ( Drunk and Disorderly)
         Awarded: Suspended:

- 19951115 :      Article 86 ( UA )
          Awarded: Suspended:

SCM:

SPCM:

- 19960130 :      Article 121 (Larceny), 2 specifications
          Sentence: BCD

CC:

Retention Warning Counseling:

- 19950404 :       For being place d on company weight control/military appearance program.

- 19950504 :      For misconduct as eviden ced by recent office hours.

- 19951115 :      For misconduct as eviden ced by recent office hours.



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 of the UCMJ, Article 132, Fraud against the United States Government.



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

Applicant’s Issues

 1. Nondecisional. Would like to compete for a better job .
2. Decisional. Was not properly represented by counsel .
3 . Decisional. Service record was good overall .
4 . Decisional. Seeks clemency / p ost -s ervice conduct consideration .

Decision


Date: 20091203         Location: Washington D.C.        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall AS A RESULT OF COURT-MARTIAL.
                                             Discussion

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 discharge if such change is warranted. 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 reflects three 6105 counseling warnings , two Non-judicial Punishment (NJPs) for violations of the Uniform Code of Military Justice (UCMJ) Article 134 (Drunk and Disorderly) and Article 86 (UA ). Additionally, the Applicant was the subject of a Special Court Martial for violations of Article 121 (Larceny), 2 specifications. He was awarded confinement, forfeiture of pay, reduction in rank to E-1 and a Bad Conduct Discharge (BCD).
: Nondecisional . The Applicant desires an upgrade to General Under Honorable C onditions so he can compete for a better job. which the NDRB cannot form the basis of relief for the Applicant as 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. The Applicant is directed to the Addendum , , regarding .

: ( ) . The Applicant claims his coun se l gave him only one choice, which was to accept a BCD . Review of his Record of Trial reveals the Applicant was given the opportunity to request a trial by jury or judge alone. He chose judge alone. He plead ed guilty to the charges preferred against him after discussing the maximum punished for these offenses with his counsel. The military judge asked the Applicant if he was fully aware of the maximum punishment allowable , if he had enough time to discuss his case with his counsel , if he believed his counsel’s advice was in his best interest , and if he plead ed guilty voluntarily. To each inquiry, the Applicant responded “yes, sir”. Finally , the judge asked the Applicant if anyone forced or threatened him to plead gu il ty. He replied “no, sir. ” Aside from the Applicant’s statement, he provides no additional proof that he was not properly represented by counsel. Relief is denied.

: ( Equity ) . The Applicant states his record of service mitigates his misconduct and while in uniform , he upheld the image and duties of a good Marine. The Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. Evidence in the record shows the Applicant consistently violated the UCMJ and Naval Service values of honor, courage, and commitment. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. The Applicant’s conduct during his period of service reflects three retention warnings, two nonjudicial punishments (NJP) for violations of the Uniform Code of Mi litary Justice (UCMJ), Articles 134 and a Special Court Martial for violations of UCMJ Article 121, which awarded him a BCD. The Applicant did not uphold the USMC Core values during his enlistment . Relief is denied .

Issue 4: (Clemency/Equity). RELIEF WARRANTED. With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency (leniency). 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. The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The NDRB determined that the reason for discharge -- convicted by special court-martial --was appropriate . However, a fter a thorough review of the Applicant’s service accomplishments , issues submitted, and considerable post service accomplishments, the NDRB determined that some degree of clemency was warranted. While the Applicant’s request for a General discharge was considered inappropriate due to the nature of his offenses , the board did find that an upgrade from Bad Conduct Discharge to an Under Other Than Honorable Conditions discharge to be appropriate.
Summary: A fter a thorough review of the available eviden ce, to include the Applicant’s summary of s ervice , r ecord entries, discharge p rocess and evidence submitted by the Applicant, the Board found , but , the Board determined that some degree of clemency was warranted.

The A pplicant has made noteworthy effort s to become a contributing member of society. Regarding his desire for a further up grade in his characterization o f service, he may benefit from the opportunity to personally present his case before the NDRB. The Applicant is reminded he remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge, 12 September 1996. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct .]


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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