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USMC | DRB | 2009_Marine | MD0902574
Original file (MD0902574.rtf) Auto-classification: Denied
ex-PVT, USMC
Current Discharge and Applicant’s Request
Application Received: 20090916
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)       20030701 - 20040620     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20040621     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080812      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 11 D a y ( s )
Education Level:        AFQT: 73
MOS: 0311/8152
Proficiency/Conduct M arks (# of occasions): /          Fitness R eports:

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

Periods of CONF : 20061223 – 20070306 (74 Days Pre-Trial Confinement Credited to approved sentence)

NJP:

- 20060823 :       Article 92 (Failure to obey order or regulation - underage drinking)
         Awarded : Susp ended:

SCM:

SPCM:
- 20070306 :       Art icle (Assault, striking a S GT in the face with a closed fist )
         Article 129 (Unlawfully breaking and entering with intent to commit assault on SGT)
         Article 134 (Impersonating a staff noncommissioned officer)
         Article 81 (Conspiracy to commit assault on a SGT)
         Sentence : CONF 7 MONTHS ( 20061222-20070305, 74 days credited toward period of confinement )

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 :      (In-service certificates of promotion and schools)

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 issues : None

2.       Decisional issues : (1) (Clemency) Applicant contends that his misconduct was an isolated incident within an honorable period of service to his nation which warrants clemency and an upgrade in the characterization of his overall service. (2) (Clemency) Applicant contends that his misconduct was inequitably treated; he was the only one to receive a Special Court Martial.

Decision

Date: 20 10 1015           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, 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’s record of service is marred with a non-judicial punishment for violation of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey a lawful order or regulation – underage drinking). Additionally , the Applicant was convicted at a Special Court-Martial for violations of the UCMJ as follow s :

•         Article 8 1 ( Conspiracy – Conspired to commit assault upon a Sgt )
•         A rticle 128 ( Assault – Assault consummated by battery by physically striking a Sgt)
•         Article 129 ( Burglary – U nlawful breaking and entering a dwelling)
•         Article 134 (General – Impersonation of a Staff Noncommissioned Officer).

The Applicant’s initial entry into the Marine Corps included no waivers for entry. The Applicant enlisted for Marine Corps Security Forces option and was selected for the Presidential Support Program. Furthermore, the Applicant ’s record of service include d overseas tours in Iraq and Yokosuka, Japan. The Applicant was promoted meritoriously to the rank of Corporal.

The Applicant was found guilty in a Special Court - Martial that a djudged a sentence of a Bad Conduct Discharge and confinement for 7 months. The Applicant was reduced to the rank of Private as a function of the sentence of 7 months confinement. The case was reviewed and the sentence was affirmed by the U.S. Navy–Marine Corps Court of Criminal Appeals. Additionally, the Naval Clemency and Parole Board reviewed the case and determined that clemency was not warranted.
: (Decisional) ( ) . 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 - an act of leniency that reduces the severity of the punishment imposed. The Applicant contends that his misconduct was an isolated incident within an otherwise honorable period of service to his nation; as such, he contends that he warrants clemency and an upgrade in the characterization of his overall service. D espite 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 good order and discipline. In the Applicant’s case, as a Non-commissioned Officer, he conspired with three other non-rate subordinate Marines to commit a physical a ssault upon a Sergeant, known to him to be a senior non-commissioned officer. Willful, abhorrent c onduct of this nature constitutes a significant departure from the conduct expected from a Marine non-commissioned officer . The evidence of record d emonstrate s that the Applicant was fully responsible for his conduct and that he should be held accountable for his action s. After a thorough review of the Applicant’s record, issues submitted, and post - service accomplishments, the Board determined that clemency was not warranted and that the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed. Relief denied.
: (Decisional) ( ) . The Applicant contends that his misconduct was treated inequitably; he was the only one to receive a Special Court - Martial. Rule 306 of the Manual for Courts-Martial specifically tasks each commander with the discretion to dispose of offenses by member s of that command. Each commander has independent, yet overlapping discretion to dispose of offenses within the limits of that officer’s authority. The disposition decision is one of the most important and difficult decisions facing a commander. Many factors must be taken into consideration and balanced, including, to the extent practicable, the nature of the offenses, and mitigating or extenuating circumstances, the character and military service of the accused, the interest of justice, and the effect of the decision on the accused and the command. The goal is a disposition that is warranted, appropriate, and fair. This includes consideration of the effect on morale, health, safety, welfare, and the good order and discipline of the unit and the service.

As a Corporal –a non-commissioned officer – the Applicant accepted the responsibility to lead, train, mentor, and set the example for his junior Marines to emulate. The c ommander was charged with determining the disposition of a non-commissioned officer suspected of leading a conspiracy of subordinate, non-rate Marines to commit an assault upon a senior non-commissioned officer. Based on the customs of the service and the expectations of an NCO in comparison to a n on-rate, the c ommander determined that justice and the good order and discipline of the c ommand was best served by referring the Applicant’s misconduct to trial by Special Court - Martial. The remaining non-rate misconduct was determined to be more appropriately handled by Summary Court - Martial. The Board determined that clemency was not warranted and that the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed. 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. 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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