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USMC | DRB | 2009_Marine | MD0902612
Original file (MD0902612.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090924
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)       19970929 - 19980421     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19980422     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20011029      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 0 8 D a y ( s )   Net Active Service: 01 Year(s) 06 Month(s) 11 Day(s)
 Education Level:        AFQT: 55
MOS: 0341
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :       UA: 19990804-19990901, 29 days; 19990913-20010912, 731 d ays
                           CONF: 20010913-20010919, 7 days (IHCA); 20010920-20011019, 30 days (pretrial confinement)

NJP:

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:

          “ 1998 04 22 ”
         “ 01 06 11 ”
         “ (29) 990804-990901; (731) 990913-010912; (7) 010913-010920; (30) 010921-011029 ”

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:           Rehabilitation/Treatment:                  Criminal Records:       
         Personal Documentation :           Community Service:                References:     
         Department of VA letter:                  Oth er Documentation:    
                  Additional Statements :
         From Applicant:            From /To Representation:            From /To Congress m ember :        

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
The applicant did not state any issues.

Decision
Date: 20 10 1014            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 did not identify any decisional issues to the Board. However, the Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service did not include any 6105 counseling warnings, non-judicial punishments, or trials by court-martial, but did reflect two periods of unauthorized absence, a violation of the UCMJ Article 86 (Unauthorized absence): 4 Aug-1 Sep 1999 (29 days) and 13 Sep 1999-12 Sep 2001 (731 days). Based on the se offenses committed by the Applicant, command referred him to trial by special court-martial on 17 Jul 2001 . On 10 Oct 2001, t he Applicant applied for and was granted an administrative separation in lieu of trial in exchange for his admission of guilt in the aforementioned violations of UCMJ Article 86. During this process, the Applicant exercised his right to consult with a qualified counsel and submit a written statement to the Separation Authority .

The Applicant provided additional documentation that included two personal letters from the Applicant (21 Jul 09, 13 Aug 09), and 11 letters of reference and personal background information from family members and friends. The record reflected that the Applicant seemed to have a normal enlistment in the Marine Corps up through his return from deployment in Jun e 1999. Within two months, the Applicant was listed as UA for 29 days before he returned to his unit on 1 Sep 1999. Twelve days later he went UA again for a period of two years until he was apprehended by authorities in the vicinity of his hometown on 13 Sep 2001. Letters of reference and background history from the Applicant’s family portray a drastic change of behavior and character of the Applicant upon his return from deployment. Per regulation, the NDRB is not an investigative body and is only authorized to utilize official service records and any additional documents submitted by the Applicant in reviewing discharges for propriety and equity. The Board presumes regularity in the conduct of government affairs unless credible evidence is brought forward to rebut this presumption. The evidence of record does not demonstrate the Applicant was not responsible for his conduct or he should not be held accountable for his actions. Furthermore, n othing in the service record or in the documentation submitted by the Applicant reflects that the command did not comply with the pertinent orders and directives in effect at the time of his discharge , or that his separation was improper and the characterization of his military service unfair .

The Board reviews the propriety and equity of each Applicant’s discharge individually. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service. The Applicant specifically requested administrative discharge for the good of the service to escape trial by court-martial. In the request, the Applicant noted his rights were thoroughly explained to him and that he had consult ed with a qualified defense counsel. Furthermore, the Applicant admitted guilt to the charges preferred against him. He also certified a complete understanding of the negative consequences of his actions and that the characterization of service could be U nder O ther t han H onorable C onditions . Lastly, the Board noted that the Applicant referenced “ family problems at home ” as the reason he went UA in his letter to the S eparation Authority during his separation in lieu of trial by court-martial. There is no evidence in the record, nor did the Applicant provide any evidence , to indicate he attempted to utilize the numerous services available for service members who undergo personal problems during their enlistment such as the Navy Chaplain, Medical or Mental Health professionals, Navy Relief Society, Family Advocacy Programs, or even the Red Cross. P ersonal and life stressors do not mitigate misconduct nor reduce the high standards of personal and professional conduct expected of all service members serving in the armed forces of the Unite d States .





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, Automatic Upgrades, 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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