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USMC | DRB | 2009_Marine | MD0902442
Original file (MD0902442.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090904
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)       20000513 - 20000604     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20000605     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20021030      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 26 D a y ( s )
Education Level:        AFQT: 35
MOS: 9971
Proficiency/Conduct M arks (# of occasions): NA / NA      Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA :   20001001 – 20001019 ( 19 days ); 20001022 – 20010507 ( 196 days )

NJP:

SCM:

SPCM:

- 20010531 :      Article (UA 20001022 – 20010507, 19 6 days)
         Sentence : 45 DAYS (200 l0531 – 200l062 3 , 23 days pre-trial confinement )
                  CA’s Action: Confinement in excess of 30 days is suspended 12 months unless sooner vacated.

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.       Nondecisional issue: The Applicant seeks an upgrade of his characterization of service from Bad Conduct Discharge to Honorable in order to re-enlist and make things right.

2.       Decisional issue : (Clemency) The Applicant contends that his personal conduct was an isolated incident resultant from interactions with negative influencing persons and was not indicative of his desire or potential. Applicant contends that he turned himself in and was willing to complete his obligation, but was not given an opportunity.

Decision

 Date: 20 10 0917            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 particular case merited clemency.

T he Board complete d a thorough review of the circumstances that led to the Applicant’s discharge , and the discharge process , to ensure his discharge met the pertinent standards of equity . The Applicant’s record of service included no 6105 retention counseling warnings or non-judicial punishments during his service. However, the Applicant’s service record indicates two separate periods of unauthorized absence from his unit in violation of Article 86 of the Uniform Code of Military Justice. These periods of absence were from 01 Oct 2000 to 19 Oct 2000 (19 days) and from 22 Oct 2000 to 07 May 2001 (196 days) . The record also reflects that the Applicant voluntarily returned himself to the military . For the second period of unauthorized absence, the Applicant was referred to a Special Court - Martial.

The Applicant ’s record reflects two pre-service entry w aiver s : one Recruiting Station C ommanding Officer waiver for the illegal us e of marijuana prior to entering the Marine Corps and one waiver from the Commanding General, Western Recruiting Region for an assault with a deadly weapon and an assault and battery with a deadly weapon.

The NDRB is authorized to consider post-service factors in the re - characterization of a discharge. However, there is no law or regulation that provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. 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.

Issue 1: ( Nondecisional) - The Applicant seeks an upgrade of his characterization of service from Bad Conduct Discharge to Honorable in order to re-enlist and make things right. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other branch of the Armed Forces, and is not authorized to change a reenlistment code. Only the Board for Correction of Naval Records 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 .

Issue 2 : (Decisional) ( ) . The Applicant contends that his personal conduct was an isolated incident, resultant from interactions with negative influencing persons, and was not indicative of his true character, desire, or potential. Additionally, the Applicant contends that he turned himself in and was willing to complete his obligation, but was not afforded the opportunity to do so. 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. 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.

The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The NDRB advises the Applicant that despite a service member’s prior record of service , certain serious offenses, even though isolated, warrant separation from the Nav al Service in order to maintain proper order and discipline .
In the Applicant’s specific case, he entered into an unauthorized absence status from his initial military occupational specialty training school for approximately 19 days; he returned to his command and , within 2 days, again absented himself from his command without authorization and remained so absent for 196 days. After 30 days absent from his unit, the Command declared him a deserter and submitted a Deserter/Absentee Want by the Armed Forces application. Violation of Article 86 in excess of 30-days (declaration of desertion status) is a serious offense and is justly punishable by a B ad Conduct Discharge .

The Applicant provided letters of re ference and a copy of his college transcripts to date as evidence of post-service accomplishments. Although his efforts to improve his life are noteworthy, the Applicant failed to provide adequate documentation and evidence on his behalf to support a thorough post-service conduct review. On page 4, Item 8, in the instructions for completion of DD Form 293, the Applicant is notified to submit evidence “ which substantiate or relate directly to your issues in Item 6 ” (Issues: Why an upgrade or change is being requested and justification for th at request). Additionally, upon receipt of the Applicant's DD Form 293, the NDRB mails an acceptance letter that includes Information Concerning Review Procedures , which discusses the submission of additional documents in paragraph 3, Submission of Evidence , and in the last section on page 4, Information Pertaining to a Review Based Upon Post-Service Conduct .

 The Applicant's efforts need to be more encompassing. The Applicant could have provided documentation that could include but is not limited to a verifiable employment record ; letter s of recommendation from his employers; evidence of a drug - free lifestyle ; certification of non-involvement with civil authorities ; evidence of financial stability (home ownership/home rental history, credit card payments); and any documenta tion of community/church service. The Applicant should be aware that completion of these items alone does not guarantee an upgrade from an unfavorable discharge . E ach discharge is reviewed by the Board , on a case-by-case basis , to determine if such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review .

Given the Applicants pre-service moral waiver for criminal adjudications, coupled with his disregard for his service obligations, and without any additional post-service documentary evidence, the Board determined that clemency is not warranted; the awarded characterization of service shall remain a Bad Conduct Discharge .

Should the Applicant feel at some later time that his post - service conduct is worthy of personally presenting to the NDRB , there are organizations, such as the American Legion and Disabled American Veterans that are willing to provide guidance and assistance in preparing such a presentation.

On an administrative note, the Applicant asserted in his DD Form 293 that he “received a Good Conduct Medal on 2001-10-12.” This is incorrect. His DD Form 214 states in block 18 that his “Good Conduct Medal period commences: 20011012,” which refers to the start date to calculate future Good Conduct Medals. To receive a Good Conduct Medal, a service member must complete three years of misconduct-free service.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, verbatim record of trial 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 his discharge. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews , Re-Enlistment, 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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