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USMC | DRB | 2009_Marine | MD0902537
Original file (MD0902537.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090917
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)       20020511 - 20021007     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20021008     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20090731      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 24 D a y ( s )
Education Level:        AFQT: 52
MOS: 0621
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF : UA: 20051219-20090614 ( 1273 days )
 CONF:

NJP:

- 20051219 :      Article (Absent from appointed place of duty 0801, 20051208 - 0601 20051209)
         Awarded: Suspended: Suspension vacated 20050105.

SCM:

SPCM:

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:
         “ (1273) 20051219-20090614 ”

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 6419, SEPARATION IN LIEU OF TRIAL BY 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)(b), 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 : Applicant seeks a change in his characterization of service from Under Other Than Honorable Conditions to Honorable. Applicant contends that his misconduct was an isolated incident a nd that extensive mitigating circumstances and the failure of his chain of command to give his situation just consideration render his characterization of service inequitable.

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

 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 g overnment al a ffairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.

The Applicant identif ied one decisional issue for the B oard’s consideration . T he Board complete d a thorough review of the circumstances that led to discharge , and the discharge process , to ensure the d ischarge met the pertinent standards of equity and propriety. The Applicant’s record of service included no 6105 retention- counseling warnings and one for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave; specifically, failure to go to appointed place of duty ) . Additionally, the Applicant was awaiting a trial by Special Court - Martial for violation of the UCMJ: Article 86 (Absence without leave; specifically, absenting himself from his unit and remaining so absent for 1273 days).

Based on the extensive length of absence and seriousness o f the offense committed , the command opted to pursue punitive disciplinary action ; therefore , t he charges were preferred for trial by Special C ourt - M artial. While awaiting trial by Special Court - Martial, the Applicant exercised his right to request administrative separation in lieu of trial. The convening authority accepted the Applicant’s request , and he was discharged with a characterization of service of Under Other Than Honorable Conditions .

Upon review of the Applicant’s separation, it was noted that the Applicant acknowledged his rights to be exercised or waived in writing . The Applicant elected to be represented by counsel, he affirmed his understanding of the least favorable characterization of service he might receive, and he acknowledged the adverse nature and possible consequences an Under Other Than Honorable Conditions characterization of service may garner .

The NDRB is authorized to consider post-service factors in the re-characterization 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. The Applicant provided documentation for consideration by the board, which included certification of non-involvement with local civil authorities, official military straggler’s orders dated 26 Jan 2006, a personal letter of recommendation from his former Company Gunnery Sergeant , and character reference letters from members in his local community. C ompletion 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 that the in-service misconduct was an aberration and not indicative of the member’s overall character.

: (Decisional) ( ) - PARTIAL RELIEF WARRANTED . The Applicant is seeking an upgrade in his characterization of service from Under Other Than Honorable Conditions to Honorable. The Applicant contends that his misconduct was an isolated incident and that extensive mitigating circumstances coupled with the failure of his chain of command placed him in an untenable position. The Applicant believes that his situation and the mitigating circumstances were not given due consideration, hence his characterization of service was inequitable.

The A pplicant provided a detailed written explanation and supporting evidence regarding the circumstanc es surrounding his misconduct. In June 2005 , the Applicant was pending an administrative separation for convenience of the government , medical condition not a disability. While waiting on the command to process the intended separation, his wife and two small children relocated to his hometown area of New Orleans, L A . On 28 August 2005 , Hurricane KATRINA struck New Orleans and the surrounding Gulf Coast region. The Applicant lost communications with his wife and children who were forced to evacuate the city. In the aftermath, the Applicant was unable to locate his immediate family and his extended family ’s ( parents and siblings ) homes and livelihood had been destroyed . The Applicant’s famil y members had been evacuated t o Houston , Atlanta , and other cities throughout the region . The Applicant requested leave to locate and aid his family ; the request was denied by his command due to pending administrative separation.

I n November , the applicant was subsequently granted leave when his 13-month-old child was hospitalized with a severe illness. After returning from the authorized leave period i n December, the Applicant’s child was again hospitalized with a severe illness. The Applicant requested leave again , but it was denied . It was at this point that the Applicant chose to absent himself from his unit without proper authority. The Applicant’s 13-month-old child was diagnosed with diabetes. When treatment began to have effect, the Applicant surrendered himself to local military authorities in order to return to his unit to complete his administrative separation . He was issued straggler orders with a plane ticket to return to his command.

The Applicant contends that he went to the airport in order to return to his unit, but the straggler orders plane ticket did not work. At this point, the Applicant made the conscious decision to return to his family to take care of them. I n so doing, he knowingly and willingly absented himself from his unit for a period of 1 273 days. In June 2009, the A pplicant voluntarily surrendered himself back into military custody. Given the severity of the unauthorized absence, the c ommand preferred the Applicant to trial by Special Court - Martial. The Applicant requested administrative separation in lieu of trial by C ourt - Martial . The command granted his request ; he was discharged administratively with a characterization of service of Under Other Than Honorable Conditions.

It was the opinion of the board that the circumstances of the situation partially mitigated the severity of the misconduct. Given the tremendous impact of Hurricane KATRINA on both the Applicant ’ s direct family and his extended family, coupled with the ongoing medical concerns with his 13-month-old child, the command could have processed his separation more expeditiously , or supported other administrative options , to assist the Applicant in resolv ing his issues . The Applicant found himself in an untenable situation between the needs of caring for his family and his service obligation, which was pending administrative separation . However, the Board also agreed that the mitigating factors of this case do not fully absolve the Applicant of responsibility for his willful misconduct. As such, the Board determined that partial relief was warranted. By a vote of 5-0, the board determined an upgrade in the Applicant’s characterization of service to General ( Under Honorable Conditions ) was warranted.

Summary : After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, discharge process, and post - service supporting documentation from the Applicant, the Board found that the discharge was proper, but not equitable. Therefore, t he awarded characterization of service shall change to GENERAL (UNDER HONORABLE CONDITIONS) while the narrative reason for separation shall remain IN LIEU OF TRIAL BY 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 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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