Upgrade.Vet

USMC | DRB | 2009_Marine | MD0902483

Original file (MD0902483.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20090909

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)       20010816 - 20020616     Active:

Period of Service Under Review:
Date of Current Enlistment: 20020617     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20071114      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 09 D a y ( s )
Education Level:        AFQT: 32
MOS: 0311
Proficiency/Conduct M arks (# of occasions): /          Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle , , , PUC , (Iraq) , , (2) ,

Pre-trial CONF: 20050914-20051004 ( 2 1 days )

NJP:

- 20040114 :       Article (UA 20040105 - 20040112 , 7 days )
         Awarded : Susp ended:
SCM:

- 20051004 :       Art icle (UA 20050713 - 20050911 , 59 days )
         Sentence : 60 days
SPCM:

- 20061031 :       Art icle (UA 20051212 - 20060920 , 285 days )
         Sentence : , FOP, CONF 75 days (20061030 - 20061219 , 49 days )

CC:

Retention Warning Counseling :

- 20040202 :       For lack of judgment, lack of maturity, demonstrating a pattern of misconduct through your actions, thereby culminating in receiving NJP on 20040414 for violation of article 86, failed to report to duty off of leave and was in an unauthorized absence status from approximately 0730 on 20040105 to 0730 20040112.

Administrative Corrections to the Applicant’s DD 214

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

         “ (7) 20040105-20040112; (59) 20050713-20050911; (21) 20 05 09 14- 20 05 10 0 4 ; (285) 20 05 12 12- 20 06 09 19 ; (49) 20061031-20061218 ”

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 P1900.16F), 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 .       Decisional issues : (Clemency) Applicant contends that his conduct in service , which include s two d eployments to Iraq and multiple ribbons, medals, and badges along with his time served in confinement resultant from the Special Court - Martial warrant an upgrade in characterization of service to Honorable.

Decision

Date: 20 10 0930          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.

The Applicant is a legal alien resident who enlisted and is an Operation IRAQI FREEDOM veteran . His service record reflects two combat deployments with his unit , includ ing the initial offensive combat operations into Iraq . The Applicant was awarded the Combat Action Ribbon for his direct engagement with enemy forces. The Applicant ’ s service record also contains one formal retention counseling warning and one Non-Judicial Punishment (NJP) for violation of Article 86 of the Uniform Code of Military Justice (UCMJ) : Absence without leave – specifically , failure to return to his appointed place of duty and remain ing absent without authority . Additionally, the Applicant received a Summary Court - Martial for violation of Article 86 of the UCMJ : Absence without leave – absenting himself from his unit and remaining absent for 59 days without authority.

The applicant submitted two letters of character reference from a local government official and the Veterans of Foreign Wars along with a personal statement for the Board’s consideration.

: (Decisional) ( ) . The Applicant contends that his conduct in service, which includ ed two combat deployments to Iraq and multiple ribbons, medals, and badges along with having served his time in confinement , as adjudged by the Special Court - Martial , warrant s clemency and an upgrade in his characterization of service to Honorable .

The applicant’s punitive discharge, on 14 November 2007 , was the sentence of a properly constituted S pecial C ourt- M artial (162-06) that was determined to be legal and proper, affirmed in the legal chain of review, and executed in accordance with ap plicable provisions of the Marine Corps Separation and Retirement Manual . The court-martial offense of absence without leave (in excess of 30 days) in violation of the UCMJ w as reflective of a disregard for duty and responsibility. In the Applicant ’ s case, unauthorized absence f rom his unit f or 284 days was a deliberate abandonment of his sworn obligation and characterizes the applicant’s service as having been performed under conditions warranting a Bad Conduct discharge (BCD).

The offense that formed the basis for the BCD, in and of itself , w as sufficient to warrant the discharge. The A pplicant had been afforded numerous opportunities , prior to the S pecial C ourt -M artial , to address his misconduct and take positive, correct action s w hen the command opted for the more lenient administrative handl ing of his two other instances of absence without leave:
•         20040105 – 20040112 (7 days) – Applicant received a Company level n onjudicial punishment and a written formal retention counseling warning in his service record book for violation of Article 86 of the UCMJ , specifically, fail ure to return to his appointed place of duty after being authorized leave , and so remaining absent for 7 more days.
•         20050713 – 20060910 (59 days) – Applicant was subject to a S ummary C ourt -M artial for violation of Article 86 of the UCMJ , specifically, absenting himself from his unit without authority and remaining absent without authority for 59 days. On the 30th day of absence, the Applicant was declared a deserter and dropped from the unit roles . Upon surrender ing himself to military custody, he was returned to his parent unit for duty.
The Applicant has demonstrated a continu ed pattern of misconduct and displayed a lack of commitment with a willful disregard for military good order and discipline. The discharge and characterization were consistent with Marine Corps policy and standards of discipline and were equitable. As such, by a vote of 5-0, the Board determined that clemency in this case was not warranted.

Summary : After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, post - service character references, and the 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. 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 | MD0902483

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