Upgrade.Vet

USMC | DRB | 2009_Marine | MD0901818

Original file (MD0901818.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20090615

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)       20010119 - 20010930     Active:

Period of Service Under Review:
Date of Current Enlistment: 20011001     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20041021      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 21 D a y ( s )
Education Level:        AFQT: 38
MOS: 3051
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle LoA CoA CoC

Periods of CONF : 20040806-20041021, 75 days
Periods of Time Lost (per DD 214): 20040512-20040513, 2 days; 20040620-20040622, 3 days

NJP:

- 20030424 :      Article (UA - appointed place of duty) , 2 specif i cations
         Article 92 (Underage drinking)
         Awarded: Suspended:

SCM:

- 20020103 :       Art icle (UA - appointed place of duty)
         Article 121 (Larceny)
         Article 134 (General article) , 2 specifications
         Specification 1: Unlawfully enter Golf Company squadbay
         Specification 2: Unlawfully enter the office of First Sergeant
         Sentence :

SPCM:

CC:

Retention Warning Counseling :

- 20030819 :       For unauthorized absence. On 20030328 you failed to report to your appointed place of duty at Assistant Duty NCO for barracks 1604. You were told by your Platoon Sergeant of you duty the day prior and you chose not to show.

- 20030819 :       For inappropriate behavior with reference to PMO blotter entry dated 20030409. Specifically, you were a passenger in a speeding vehicle driven by a 17 year old military dependent daughter. Upon being stopped by the Military Police , the driver failed a field sobriety test. Further, upon search of the vehicle, marijuana and drug paraphernalia were discovered therein. You are counseled concerning the Marine Corps zero drug tolerance policy. Your judgment in this matter was unsatisfactory. You are advised not to place yourself in a situation where your safety, integrity, and adherence to the Corps values may be jeopardized or doubted.

- 20030820 :       For misconduct. Specifically, you were involved in a physical altercation at the barracks where you struck fellow Marines without proper cause. Your actions and judgment are inexcusable.

- 20040330 :       For unauthorized absence from appointed place of duty. Your failure to obey and follow the rules and regulations is conduct inconsistent with the traditional good standards of good order and discipline. You lack of discipline and judgment is conduct unacceptable and will not be tolerated.

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 6419, SEPARATION IN LIEU OF TRIAL BY 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)(b), 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 .

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

Applicant’s Issues

1. Victim of double jeopardy since he paid his fines and served his punishment and was still court-martialed.

Decision

Date: 20 10 0 429 Location: Washington D.C . R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall .

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 g overnment al a ffairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service included four 6105 counseling warnings ; one nonjudicial punishment for violations o f the Uniform Code of Mil itary Justice (UCMJ): Article 86 ( Failure to go to appointed place of duty, 2 specifications ) and Article 92 ( Failure to obey order or regulation, 1 specification: underage drinking ); and one summary court-martial (SCM) for violations of the UCMJ: Article 86 ( Failure to go to appointed place of duty, 1 specification ) , Article 121 (Larceny, specifics not found in record), and Article 134 ( Unlawful entry, 2 specifications: into Golf company squad bay and office of the First Sergeant) . Subsequent to the SCM, the Applicant was in pre-trial confinement pending a second court-martial for perjury, false official statement, and conspiracy. Since two of the three Marines that would have testified at the second court-martial were deployed, which would have delayed the trial, the Applicant’s commander endorsed the Applicant’s request to be separated in lieu of trial. On 4 October 2004, the Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial. He consulted with counsel and was fully advised of the implications of his request. The Applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits based upon his current enlistment, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing. The Applicant stated he understood the elements of the offenses with which he was charged and voluntarily admitted he was guilty of all charges and specifications in the charge sheet.

Issue 1 : (Decisional) ( ) . The Applicant contends he was a victim of double jeopardy since he paid his fines and served his punishment and was still court-martialed. For the Applicant’s information, he was held in pre-trial confinement for 75 days pending the start of a second court-martial for charges as noted above. Although his commander believed the Applicant’s offenses warranted a trial by court-martial, the commander felt approving the request for separation in lieu of trial by court-martial was in the best interest of the Marine Corps. The NDRB determined the Applicant was not a victim of double jeopardy and the awarded characterization of service was appropriate. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. 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 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 : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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. There are veterans organizations such as the American Legion and the Disable d American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. 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.

Employment/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 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, 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 BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. Outstanding post-service conduct, 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, is considered during Board reviews. Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; 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 companies, or other financial institutions; attendance at 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 the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate in-service misconduct was an aberration and not indicative of the member’s overall character.

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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USMC | DRB | 2009_Marine | MD0901818

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