Upgrade.Vet

USMC | DRB | 2009_Marine | MD0901953

Original file (MD0901953.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20090707

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)       19780828 - 19790808     Active:          19790809 - 19840408
                                             19840409 - 19890221

Period of Service Under Review:
Date of Current Enlistment: 19890222     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19970703      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 11 D a y ( s )
Education Level:        AFQT: 75
MOS: 6060
Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle Pistol (4 ) MM (2) (2 ) (5 ) JMC

Periods of UA / CONF :

NJP: SCM:

SPCM:
- 19950201 :      Article (Willfully disobey lawful command from superior commissioned officer, ordered not to hav e contact with a married woman - 3 specifications : 19940618 , 19940624 and 19940705 ).
         Article (Willfully disobey lawful command from superior commissio ned officer, ordered to have no physical or verbal contact with a married woman - 3 specifications : 19940618 , 19940624 and 19940705 ).
         Article (General article – wrongfully have sexual intercourse with a married women not his wife from 19940405 to 19940714) .
         Sentence : REPRIMANDED

CC: Retention Warning Counseling:

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “ BAD CONDUCT ”
         “ COURT-MARTIAL ”
         “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 790809 UNTIL 890221 ”

The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.

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 .

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

Applicant’s Issues

1. The Applicant believes his discharge was inequitable and requests clemency based on his record of service.

Decision

Date: 2010 0617 Location: Washington D.C. R epresentation :

By a vote of the Characterization shall .
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 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 p articular case merited clemency. The Applicant’s record of service included for of the UCMJ: Article (Willfully disobey lawful command from superior commissioned officer, ordered not to have contact with a married woman – 3 specifications: 19940618, 19940624 and 19940705), Article (Willfully disobey lawful command from superior commissioned officer, ordered to have no physical or verbal contact with a married woman - 3 specifications:19940618, 19940624 and 19940705) and Article (Adultery by wrongfully having sexual intercourse with a married women not his wife from 19940405 to 19940714). These are serious charges that were adjudicated at a SPCM. The Applicant was properly discharged from the Marine Corps.

: (Decisional) ( ) . T he Applicant contends his discharge was inequitable and requests clemency based on his record of service. Despite a Marine’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. Based on the charges, the NDRB determined that the Applicant, a senior staff noncommissioned officer , was fair warned and ordered by a superior comm issioned officer to stop all communication s and any other relationship activities with a married woman, which he willfully disobeyed . T he Applicant discharge was warranted. Clemency denied.

The NDRB is authorized to consider post-service factors in consideration if a case warrants clemency. Outstanding post-service conduct, to the extent such matters provide a basis for clemency, are considered during Board reviews. Supporting documentation to help support post service clemency includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificate (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; attending 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 clemency will be granted, as each discharge is reviewed by the Board on a case by case basis to determine if post service conduct justifies clemency. The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. As documentation supporting post service, the Applicant failed to provide any additional documentation and evidence on his behalf. To warrant clemency, the Applicant’s post service efforts need to be more encompassing. The Applicant could have produced additional evidence as stated in the above paragraph with the full understanding completion of these items alone does not guarantee clemency. The Board determined the characterization of service received, “Bad Conduct Discharge”, was an appropriate characterization considering the length of service and the UCMJ violations involved, and based on the lack of post service documentation provided, clemency would be inappropriate

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 COURT-MARTIAL. 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 , Issues Concerning Bad-Conduct Discharges (BCD ) 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

Similar Decisions

USMC | DRB | 2010_Marine | MD1000085

Original file (MD1000085.rtf) Auto-classification: Denied

Additionally, the Naval Clemency and Parole Board reviewed the case and determined that no clemency was warranted. The NDRB conducted a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record entries, the transcript of the Special Court-Martial proceeding, and the overall discharge process. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the...
NAVY | DRB | 2006_Navy | ND0600073

Original file (ND0600073.rtf) Auto-classification: Denied

ND06-00073 Applicant’s Request The application for discharge review was received on 20051020. NMCCMR: The findings of guilty and sentence, as approved on review, are affirmed.940325: Appellate review complete.940405: SSPCMO: Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed. PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW Discussion The Applicant was discharged on 19940405 with a bad conduct discharge which was the sentence adjudged by a...
USMC | DRB | 2006_Marine | MD0600755

Original file (MD0600755.rtf) Auto-classification: Denied

Equity: Quality of service – The Applicant contends that his discharge should be upgraded to truly reflect his nearly 15 years of exemplary Marine Corps service. The Applicant’s Commanding Officer recommended that the Applicant receive a General Under Honorable Conditions characterization and the GCMCA agreed with that recommendation. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.
NAVY | DRB | 2006_Navy | ND0600641

Original file (ND0600641.rtf) Auto-classification: Denied

The Board determined that the documentation provided by the Applicant did not mitigate the misconduct which resulted in the Applicant’s discharge and the characterization of his service. Recommendation on Separation: BY Commanding Officer Recommendation (date): (19940418)Chief of Naval Operations (19940518)Separation Authority (date): Asst Sec of Navy (M&RA)(19940603)Reason for discharge directed: - Characterization directed: Date Applicant Discharged: 19940624 Types of Documents Submitted...
USMC | DRB | 2012_Marine | MD1201871

Original file (MD1201871.rtf) Auto-classification: Denied

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. ” Additional Reviews : After a document review has been conducted, former members are...
USMC | DRB | 2010_Marine | MD1000729

Original file (MD1000729.rtf) Auto-classification: Denied

Types of Documents Submitted/reviewedRelated to Military Service: DD 214: Service/Medical Record: Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Rehabilitation/Treatment: Criminal Records: Personal Documentation: Community Service: References: Department of VA letter: Other Documentation: Additional Statements: From Applicant: From/To Representation: From/To Congress member: Pertinent Regulation/Law A. Paragraph 6210,...
NAVY | DRB | 2010_Navy | ND1002262

Original file (ND1002262.rtf) Auto-classification: Denied

The U.S. Department of Veterans Affairs determines eligibility for post-service benefits, not the Naval Discharge Review Board. The NDRB has no authority to upgrade a discharge for the sole purpose of making a former service member eligible to receive educational, medical, or any other veterans benefits. ” 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...
USMC | DRB | 2008_Marine | MD0801946

Original file (MD0801946.rtf) Auto-classification: Denied

However, the Board did determine, by a majority vote of 3-2, to change the Applicant’s character of service to General (Under Honorable Conditions).Relief granted.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and record entries, and discharge process, the Board found the discharge was proper and equitable at the at the time of discharge. However, based on his post-service efforts, the Board deemed it fit to award an...
NAVY | DRB | 2015_Navy | ND1401545

Original file (ND1401545.rtf) Auto-classification: 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 remain UNDER HONORABLE CONDITIONS (GENERAL) and the narrative reason for separation shall remain MISCONDUCT (SERIOUS OFFENSE). ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the...
USMC | DRB | 2015_Marine | MD1500944

Original file (MD1500944.rtf) Auto-classification: Denied

Types of Documents Submitted/reviewedRelated to Military Service: DD 214: Service/Medical Record: Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Rehabilitation/Treatment: Criminal Records: Personal Documentation: Community Service: References: Department of VA letter: Other Documentation: Additional Statements: From Applicant: From/To Representation: From/To Congress member: Types of Witnesses Who Testified Expert: Character:...

Search Decisions

Decision Text

USMC | DRB | 2009_Marine | MD0901953

Similar Decisions