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USMC | DRB | 2009_Marine | MD0901827

Original file (MD0901827.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20090616

Characterization of Service Received:

Narrative Reason for Discharge: AS A RESULT OF A (SPCM) OTHER

Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to:

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       19920411 - 19921108     Active:

Period of Service Under Review:
Date of Current Enlistment: 19921109     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19950508      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 00 D a y ( s )
Education Level: 12      AFQT: 43
MOS: 0151
Proficiency/Conduct M arks (# of occasions): /          Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA :

NJP:
- 19930716 :      Article (Drug abuse, wrongful use of a controlled substance – marijuana)
         Awarded: Suspended:

- 19930805 :      Article (General – break ing restriction)
         Awarded: Suspended:

- 19930824 :      Article ( Disobey a lawful order )
         Awarded: Suspended:

SCM:

SPCM:
- 19940124 :      Article 81 (Conspiracy – to commit an offense, burglary and larceny on 19931016)
         Article 121 (Larceny – steal various items on 19931016)
         Article 134 (Unlawful entry – in to another marines barracks room.)
         Sentence : BCD 5 months (19931021-19940124, 96 days) FOP
         CA’s Action: Confinement in excess of 96 days is suspended for 12 months unless sooner vacated. Accused is credited 95 days against sentence to confinement. Deferment of all unexecuted confinement is hereby rescinded.

CC:

Retention Warning Counseling:
- 19930615 :      For lack of good judgment and inappropriate conduct.

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 :      VA Rating Decision

Pertinent Regulation/Law

A. Paragraph 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURTS-MARTIAL , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 June 1989 until 17 August 1995.

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 .

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

Applicant’s Issues

1. The Applicant claims he was insane at the time of his misconduct.

Decision

Date: 20 10 0422 Location: Washington D.C . R epresentation :

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

Discussion

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. With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severi ty of the punishment imposed. 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 Applicant’s record of service included 6105 counseling warning , for o f the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey an order or regulation), Article 112a (Drug abuse, wrongful use of a controlled substance: marijuana) and Article 134 (Breaking restriction) ; and Special Court-Martial (SPCM) for of the UCMJ: Article 81 (Conspiracy to commit a offense: burglary and larceny), Article 121 (Larceny), Article 134 (Unlawful entry by going into another Marines barrack room). The Applicant also had a pre-service drug waiver prior to entering the Marine Corps, and acknowledged complete understanding of the Marine Corps Policy Conc erning Illegal Use of Drugs on 10 April 1992 . The Applicant was found guilty at a SP CM on multiple charges and discharged from the Marine Corps .

: (Decisional) ( ) . The Applicant contends he was insane at the time of his misconduct. The Applicant provided a Veteran’s Administration (VA) rating decision dated 1 February, 2008 to show he was not at fault for his actions. The NDRB’s decision is not bound by the VA ’s ruling, as the VA tries their best to help their veteran’s. The Applicant was seen by two different medical evaluators, which resulted in two different opinions. The VA wrote, “When weighing all the evidence of record , we find that the evidence is in equipoise. Therefore, the benefit of the doubt will be applied in the veteran’s favor. In this case, the veteran was insane at the time in question. ”

The Applicant received his injury when he hit his head on a pole in March 1993 , while playing basketball . This injury required brain surgery to be done and the Applicant was afforded ample time to recover. Four months following the Applicant’ s injury, he began a string of multiple acts of misconduct (3 NJP’s and 1 SPCM). At the SPCM, the judge asked the Applicant , “Do you believe that there has been any impairment of his ability to formulate the requisite intents here as a consequence of his injuries?” The Applicant’s trial counsel replied, “No, your Honor. I have gone over that in quite - - in a lot of detail and spent a lot of time with Private S_ on that issue, and we discussed basically all the things he discussed with his doctors as well as the offenses and his service record book, sir.” The judge then said, “So you’re convinced they’re just two separate ---“ The Applicant ’s counsel interrupted and stated, “Sir, I believe that Private S_ is of sound mind and he knew what he was doing at the time and he understands everything that’s going on here today; yes, sir.” Based on the SPCM testimony, the NDRB determined that the Applicant knew exactly what he was doing and that he was not insane when he committed the misconduct. Therefore, the discharge awarded was warranted. Clemency denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, discharge process and evidence submitted by the Applicant, t he Board found clemency was not warranted and the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed. Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain AS A RESULT OF A (SPCM) . 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 Additio nal Reviews 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 | MD0901827

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