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USMC | DRB | 2009_Marine | MD0902126

Original file (MD0902126.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20090728

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)       20010928 - 20011015     Active:

Period of Service Under Review:
Date of Current Enlistment: 20011016     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080125      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 01 D a y ( s )
Education Level:        AFQT: 96
MOS: 5811
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle Pistol (2) MM LoA

Periods of CONF : 20040521-20040728 (69 days)

NJP: SCM:     CC:

SPCM:

- 20040418 :       Art icle (Disrespect toward superior commissioned officer)
         Art icle (Assaulting, willfully disobeying superior commissioned officer)
         Art icle (Insubordinate conduct toward warrant, noncommissioned officer)
         Art icle 99 (Misbehavior before enemy)
         Sentence :

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. Manual For Courts-Martial, United States, 2008 ed.

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

Applicant’s Issues

1 .       Decisional I ssue : (Clemency ) - Applicant contends that he warrants an Honorable characterization of service based on his total service record as a M ilitary P oliceman , both overseas, stateside , and in combat operations during OPERATION Iraqi Freedom , not the isolated incident that resulted in a Special Court - Martial conviction and adjudicated Bad Conduct Discharge characterization of his service.

2 .       Decisional Issue: (Clemency) Applicant contends that he was not responsible for his conduct and the resultant Special Court-Martial and a djudicated Bad Conduct Discharge characterization of service while deployed in support of OPERATION Iraqi Freedom due to mental defect ( undiagnosed, early onset of schizophrenia ) .

Decision

Date: 20 10 0818          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 st ated in a court-martial are presumed by the NDRB to be established facts. The Applicant’s Special Court - Martial resulted from his refusal to accept his weapon and ammunition in order to provide security for a combat logistics convoy in the A l- Anbar Province , Iraq in Feb ruary 2004 during OPERATION Iraqi Freedom. The case was exacerbated further by the Applicant ’ s disrespect to and disobedience of orders from his Noncommissioned Officers, Staff Noncommissioned Officers, and Officers in his chain of command. The Applicant was found guilty and convicted of the following violations of the Uniform Code of Military Justice: Article 89 (Disrespect toward a superior commissioned officer) , Article 90 (Willfully disobeying a superior commissioned officer in time of war) , Article 91(Insubordinate conduct toward warrant, noncommissioned officer, petty officer - 2 specifications) , and Article 99 ( Misbehavior before the enemy). All other charges and specifications were withdrawn and dismissed with prejudice.

The Applicant’s Court - Mart i al received due legal process.

-        The Applicant requested and received Trial by Military Judge alone pursuant to his pre-trial agreement .
-        T h e Applicant did not submit comments or corrections to the R ecord of Trial to the Convening Authority.
-        The Applicant’s case was reviewed and results ordered executed by the Convening Authority.
-        The Applicant requested and received voluntary Appellate Leave pending leg al review of the Court-Martial.
-        On 12 Jan uary 2005, the Naval Clemency and Parole Board reviewed the Applicant’s Court - Martial, clemency was denied .
-        The United States Navy-Marine Corps Court of Criminal Appeals reviewed and upheld the Applicant ’ s case. The Applicant’s motion for a Mental Competency hearing and appeal based on assignment of error w as denied.
-        The Applicant petitioned for a Grant of Review of the Navy-Mar i ne Corps Court of Criminal Appeals decision to the U.S. Court of Appeals for the Armed Forces.
-        On 30 Aug ust 2007, the U.S. Court of Appeals for the Armed Forces denied the Applicant’s petition for review.
-        On 16 January 2008, the final Court - Mart i al Order was promulgated. Applicant received the following sentence (as partially suspended by pre-trail agreement):
o        Confinement for one year
o        Forfeiture of $795.00 pay per month for 12 months
o        Reduction to pay grade E-1
o        Bad Conduct Discharge from the United States Marine Corps .

Since discharge, the Applicant ’s mental health condition has deteriorated. Initially diagnosed with Bi-polar disorder, the Applicant has since been diagnosed as suffering from schizophrenia , undifferentiated, with multiple delusions, not likely to recover, with total permanent disability. Up to the point of final Court - Martial O rder promulgation, the Applicant was being treated by the Department of Veterans Affairs Health Care System in Arkansas.

: (Decisional) ( ) . Applicant contends that he warrants an Honorable characterization of service based on his total service record as an MP, both overseas, stateside, and in combat operations during OPERATION Iraqi Freedom, not the single isolated incident that resulted in a Special Court - Martial conviction and adjudicated Bad Conduct Discharge characterization of service. The Applicant stated that his discharge resulted from one isolated incident. Despite a service member’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. Furthermore, t he characterization of service is a description of the total service provided during the member’s enlistment. When the service of a member of the Naval Service has been honest and faithful, it is appropriate to characterize that service as H onorable. A B ad C onduct D ischarge is a punitive discharge, awarded by a Special or General Court - Mart i al, and is warranted when significant negative aspects of a member’s conduct or performance of duty outweighs the positive aspects of the member’s military record . The Applicant’s service was marred by his Special Court - Mart i al conviction for violation s of the UCMJ (Articles 89, 90, 91, and 99) , which constitute the “commission of serious offense s.” Th e violation of Article 99 carries with it the maximum punishment of Death if adjudicated by a Court-Martial. The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of conduct expected of all Marines, especially one of his grade and length of service , and falls far short of what is required for an upgrade in the characterization of service.

: (Decisional) ( ) . Applicant contends that he was not responsible for his conduct and the resultant Special Court-Martial and adjudicated Bad Conduct Discharge characterization of service while deployed in support of OPERATION Iraqi Freedom due to mental defect: undiagnosed, early onset of schizophrenia.
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 determination of mental competency was addressed through the legal appeals process. The U.S. Court of Appeals for the Armed Forces upheld the lower court’s findings that the Applicant was responsible for his conduct at the time of the actions and was competent to stand trial.

With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency. The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The Board determined the characterization of service received, Bad Conduct Discharge , was an appropriate characterization considering the length of service , the UCMJ violations involved , and that the acts were committed during time of war before or in the presence of the enemy.

Summary: After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service and Medical Record Entries, Discharge and Appeal Process , and post - service medical diagnosis and supporting documentation s ubmitted 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.

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his discharge. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional 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 | MD0902126

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