Upgrade.Vet

USMC | DRB | 2009_Marine | MD0901893

Original file (MD0901893.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20090624

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)       20040924 - 20041011     Active:

Period of Service Under Review:
Date of Current Enlistment: 20041012     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20061113      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 02 D a y ( s )
Education Level:        AFQT: 49
MOS: 0300
Proficiency/Conduct M arks: / Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle

NJP:

- 20050427 :      Article (Absence without leave 1745, 20050327 – 1600, 20050425 )
         Awarded: Suspended:

SCM:

SPCM:

- 20051013 :      Article (Absence without leave 20050507 – 20050915, 128 days , appre he nded )
         Sentence : BCD 60 DAYS (20050917 – 20051012, 26 days)
         CA’s Action: Confinement in excess of 28 days is suspended for 12 months unless sooner vacated. Deferment of service of confinement in excess of 28 days is rescinded this date. Accused credited 28 days for pretrial confinement (20050917 – 20051012, 26 days) and for time spent in the hands of civilian authorities (20050915 – 20050916, 2 days).

CC:

Retention Warning Counseling:

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 P1900.16F), 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 . 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. Improve his family name and reputation in the community.
2. Isolated incident with a contributing medical condition.
3. Post-service conduct reflects outstanding character.
Decision
Date: 20 10 0625 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 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 severity 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 one nonjudicial punishment for violation of the Uniform Code of Mil itary Justice (UCMJ): Article 86 ( Absence without leave, 29 days), and one special court-martial (SPCM) for violation of the UCMJ: Article 86 ( Absence without leave more than 30 days, 128 days, apprehended). The Applicant pled and was found guilty at the SPCM and sentenced to 60 days confinement, forfeiture of pay, and a Bad Conduct Discharge.

Issue 1 : (Nondecisional) The Applicant wants to im prove his family name and reputation in the community. The NDRB has no authority to grant clemency based on improving a servicemember’s reputation in the community.

Issue 2 : (Decisional) ( ) . The Applicant contends his misconduct was an isolated incident with a contributing medical condition. The Applicant had a severe ear infection while in the Marine Corps. However, he had at least two violations of Article 86, which does not indicate an isolated incident. Per his record of trial dated 13 October 2005, the military judge asked the Applicant “Was your absence caused or extended by any physical or medical disability on your part?” The Applicant responded, “No, sir.” While his medical condition may have been a contributing reason for his initial decision to go UA, however, once cleared up he did not return voluntarily or surrender to military authorities. He was apprehended by U.S. C ustoms and B order Protection p ersonnel after taking a 5-day cruise when his name triggered an arrest warrant. The NDRB determined this issue is without merit.

Issue 3 : (Decisional) ( ) . The Applicant contends his post-service conduct reflects outstanding character. The NDRB considers post-service conduct to determine if the misconduct committed during active duty was indicative of the Applicant's character or an aberration. The Applicant provided several letters of reference, educational transcripts, employment records, license information, a criminal background check , and credit reports. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB determined that partial clemency was warranted and voted to upgrade his characterization of service from Bad Conduct to Und e r Other Than Honorable conditions . When a service member’s conduct has been honest and faithful, it is appropriate to characterize that service under H onorable conditions. In fairness to all service members who have worked hard and conducted themselves consistently up to the highest standards of Naval service and as a result were awarded an Honorable discharge, the Applicant’s misconduct does not place him in that category of service and as such does not warrant an upgrade to Honorable.

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 that clemency was warranted. 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 | MD0901893

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