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USMC | DRB | 2010_Marine | MD1000091
Original file (MD1000091.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20091008
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)       19970829 - 19980823     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19980824     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20020731      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 00 D a y ( s )
Education Level:        AFQT: 36
MOS: 3051
Proficiency/Conduct M arks (# of occasions): /   Fitness R eports:
Awards and Decorations ( per DD 214):      NONE

Periods of UA
I n the Hands of Civilian Authorities : 20001108-20001109, 2 days

NJP:

- 19990420 :       Article (Failure to obey an order or regulation, wearing inappropriate liberty attire )
         Awarded : Susp ended:

- 19990608 :       Article 92 (Failure to obey a order, not to go to the Marine Corps Exchange while on restriction)
         Article 134 (Break restriction by wearing civilian clothes)
         Awarded : Susp ended:

SCM:

SPCM:

- 20010316 :       Art icle 81 (Conspire to commit larceny of a Harvey Hydroclave MC8 Desk Top Surgical Sterilizer, military property)
         Article 121 (Steal a Surgical Instrument Sterilizer, of a value of about $2,848.82, military property)
         Sentence : 45 days (20010316-20010422, 37 days)

CC:

Retention Warning Counseling :

- 19990408:       For poor judgment and disregard for good order and discipline by failure to be at your appointed place of duty, specifically, your being UA from PT 0630 until 0640, 19990407.

- 19990610 :       For PES Planus Bi-Lateral, Plantar Fasciitis Bi-Lateral, Hallux Valgus Bi-Lateral

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:
         
         “ (2) 20001108-20001109; (37) 20010316-20010422` ”
        
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 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. In-service conduct .
2. Post-service conduct.
Decision
Date: 20 10 1110            Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall BAD CONDUCT .
 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 NDRB 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’s record of service included two 6105 counseling warnings ; two nonjudicial punishments for violations o f the Uniform Code of Mil itary Justice : Article 92 ( Failure to obey order or regulation, 2 specifications: wearing inappropriate liberty attire and going to the Marine Corps Exchange while on restriction) and Article 134 (Break restriction by wearing civilian clothes); and one special court-martial (SPCM) for violations of the UCM: Article 81 (Conspire to commit larceny of a Harvey Hydroclave MC8 desk top surgical sterilizer and steal a surgical instrument sterilizer of a value of about $2,848.82, military property). At the SPCM, the Applicant pled and was found guilty of the charges against him and was awarded 45 days con finement, reduction to E-1, and a Bad Conduct discharge.
Issue 1 : (Decisional) ( ) . The Applicant contends he received a Good Conduct Medal, had a 300 physical fitness test score, was promoted to Lance Corporal, was a DRMO section head, had sustained back, knee, shin, and foot challenges during active duty , and had three recommendations for administrative separation. The Applicant feels he should receive the benefits for the good he achieved during his enlistment. Despite a service member’s prior record of service , certain serious offenses, warrant separation from the Marine Corps to maintain proper order and discipline. Violation of Article 121 is considered a serious offense, and the Applicant was properly court-martialed and discharged with a Bad Conduct discharge. As to his contention that he had recommendations to be administratively separated for physical reasons, DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Based on the Applicant’s documented misconduct, the NDRB determined the Applicant does not merit clemency. Additionally, the Applicant stated he earned a Good Conduct M edal. This is incorrect. A Good Conduct M edal is awarded for three consecutive years of misconduct-free service. The Applicant’s confusion may have arisen from Block 18 of his DD Form 214, which states, “Good Conduct Medal period commences: 20011022.” This statement applies to the start of the three-year counter if the Applicant had stayed on active duty.

Issue 2: (Decisional) ( ) . The Applicant contends since being discharged he has become more mature and is implementing life - changing behaviors. The NDRB considers 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. The Applicant failed to provide any post-service documentary evidence on his behalf and the NDRB was not able to form a basis of relief. To warrant clemency, the Applicant c ould have provided documentation as described in the Post-Service Conduct paragraph in the Addendum . The Applicant should be aware submission of these items alone does not guarantee clemency as each discharge is reviewed by the NDRB on a case-by-case basis.

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 BAD CONDUCT 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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