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USMC | DRB | 2009_Marine | MD0902581
Original file (MD0902581.rtf) Auto-classification: Denied

ex-, 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)       19910523 - 19911217     Active:            19911218 - 19951101
                                             19951102 - 19990810

Period of Service Under Review:
 Date of Current Enlistment: 19990811     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20010705      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 25 D a y ( s )
Education Level:        AFQT: 61
MOS: 6672/8411
Proficiency/Conduct M arks (# of occasions): /          Fitness Reports:

Awards and Decorations ( per DD 214):      , , (2) , (2) , , , , CoC (3) , LoC , CoA , LoA , MM (3)

Periods of CONF : 5 MONTHS (20010330 – 20010705, 98 days)

NJP:

SCM:

- 20010102 :      Article (Assaulting or willfully disobeying superior commissioned officer – disobeying a superior commissioned officer)
         Sentence:

SPCM:

- 20010522 :      Article (Disrespect toward superior commissioned officer)
          Article (General article – communicating a threat , 2 specifications )
         Sentence: 5 MONTHS ( Credit 58 days Pre-Trial Confinement), Reduction in Rank to E-1
PTA: Suspend all confinement in excess of Pre-Trial confinement
Suspension revoked and sentence ordered executed 20010525

CC:

- 20010 312 :     Making Terroristic Threats to wife and children .
                 NJ District Court: Case pled down to charge of making communications in an annoying/alarming manner
                  Sentence: 30 days (Credit for 30 days time served)

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:           Rehabilitation/Treatment:                 Criminal Records:       
         Personal Documentation:           Community Service:                References:     
         Department of VA letter:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

Pertinent Regulation/Law

 A. Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 January 1997 until 31 August 2001.
B. 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 .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article s 89, 90, and 134.


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

Applicant’s Issues

 1.       Applicant requests a change in his re-enlistment code in order to re-enlist in the Marine Corps and fulfill his dreams and to do his duty to serve his country.

2.       Applicant contends that his misconduct was mitigated by personal stress in his marriage and family life and that he served his sentence as adjudicated by the Special Court Martial and completed treatment to control his anger.

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

 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. Additionally, r elevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts.

T he Applicant identif ied one decisional issue for the Board ’s consideration . T he Board complete d a thorough review of the circumstances that led to the Applicant’s discharge , and the discharge process , to ensure the discharge met the pertinent standards of equity and propriety. The Applicant’s record of service reflects entry into the service on a waiver for pre-service drug use (marijuana) and misdemeanor disorderly conduct in public. Throughout his enlistments, the Applicant received no 6105 retention- counseling warnings or non-judicial punishment for violation of the Uniform Code of Military Justice. However , the Applicant’s service record include s one for of the UCMJ: Article 90 ( Willfully disobeying a superior commissioned officer ) and for of the UCMJ: Article 89 ( Disrespect toward a superior commissioned officer ) and Article 134 (General Article; two specifications of communicating a threat). Additionally, the Applicant’s service record reflects a formal relief of duties for cause while assigned to recruiting duty as a canvassing recruiter and in-patient treatment at a mental health facility with a diagnosis of major depression; single episode – sever e , without psychotic features during the period of misconduct .

Based on the offenses committed by the Applicant, he was administratively processed for separation pursuant to paragraph 6210.6 of the Marine Corps Separation and Retirement Manual, misconduct – commission of a serious offense . When notified of the a dministrative separation processing using the board notification procedure, the Applicant waived his right to consult with qualified counsel, to submit a written statement, or to request an administrative board hearing .

The Applicant provided copies of his mental health treatment and diagnosis along with a personal statement and letters of reference attesting to his post-service conduct and personal character for the Board’s consideration .

: (Nondecisional) The Applicant seeks a change in his re-enlistment code in order to re-enlist in the Marine Corps and fulfill his dreams and his duty to serve his country. The NDRB has no jurisdiction or authority over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other 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. Reenlistment policy of the Marine Corps is promulgated by the Commandant, United States Marine Corps, Code MMEA, 3280 Russell Road, Quantico, VA 22134. A request for a waiver may be submitted during the processing of a formal application for reenlistment through a recruiter; neither a less than fully honorable discharge, nor an unfavorable "RE" code is, in itself, a bar to reenlistment.



: (Decisional) ( ) . The Applicant contends that his misconduct was mitigated by personal stress in his marriage and family life and that he warranted retention; he served his sentence as adjudicated by the Special Court Martial and completed treatment to control his anger .

The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted. There is no evidence of impropriety, inequity , or procedural irregularities in the Applicant's discharge. Furthermore, t he Applicant's misconduct was documented clearly in both his summary court martial and his trial by special court martial proceedings and again in his written relief for cause from recruiting duty . As a component of the trial by Special Court Martial, the Applicant singed a pre-trial agreement, offering his plea of guilty and a promise of no further misconduct in exchange for withdrawal of some charges and a limitation on any adjudged confinement. The A pplicant acknowledged his culpability to the agreed upon charges of misconduct and was found guilty at trial by Special Court Martial. Following the S pecial C ourt M artial conviction, the Applicant violated his pre-trial agreement by again threatening his wife with physical violence ; the S pecial C ourt M artial convening authority revoked the suspension of confinement , and the Applicant was ordered to complete his sentence as prescribed in the S pecial C ourt M artial .

During the administrative separation process, the Applicant acknowledged and waived his rights to administrative review. He was notified of the command’s characterization of service recommendation of Under O ther than H onorable Conditions . The Applicant was afforded the appropriate due process during the processing of his separation recommendation . The NDRB found that the aggravating factors of homicidal threats and a complete disregard for his chain of command outweighed any mitigating and extenuating factors presented by the Applicant or annotated in his record. Aggravating facts noted by the Board included personal stress upon his marriage and family life due to the hours and pressure of being a canvassing recruiter , an assignment the Applicant requested in order to ma ke himself more competitive for promotion . The Applicant provides no documented information regarding family problems or a lack of support from the command with assistance, leave, or help that he asked for. Additionally, the Applicant makes no mention of, nor provides documented proof, if he attempted to use any one of the numerous family support programs sponsored by or for military service members. These programs and services, such as Family Advocacy, Navy – Marine Corps Relief Society, Red Cross, and the Chaplain, all provide services to members of the military, regardless of grade, in times of need.

After reviewing all of the availa ble facts and evidence , the board determined a n upgrade in the Applicant's discharge is not warranted. In addition, the narrative reason for discharge - convicted by special court martial - is most appropriate. Relief denied .

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, his personal statement and character references, and the discharge process, the Board found that the discharge was both proper and equitable. Therefore, the awarded characterization of service shall UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain MISCONDUCT .
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, Re-enlistment Codes, 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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