Upgrade.Vet

USMC | DRB | 2010_Marine | MD1000182

Original file (MD1000182.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20091021

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)       19910916 - 19920518     Active:

Period of Service Under Review:
Date of Current Enlistment: 19920519     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19960430      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 27 D a y ( s )
Education Level:        AFQT: 63
MOS: 3051
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA: 19940916-19940919 (2 days), 19941107-19950102 (56 days)
Periods of Conf: 19950102-199502 22 (50 days)

NJP: 4

-19940316:       Article 86 (Failed to go to appointed place of duty, 22 Area Armory for CRT rifle detail at 0430, 19940303)
         Awarded: Susp ended: FOP (for 3 months)

- 19940525 :       Article 86 (Failed to go to appointed place of duty, 22 Area Armory for CRT rifle detail at 0430, 19940411)
         Awarded : Susp ended:

-19940810:       Article 91, 2 Specifications
         Specification 1: Willfully disobey a non-commissioned officer
         Specification 2: Contempt, disrespect toward a non-commissioned officer
         Awarded: RESTR EPD (Vacated Suspended Reduction in Rank dtd 19940525)

- 19940929 :       Article (Unauthorized absence 1530, 19940915 to 0800, 19940916)
         Article 86 (Unauthorized absence 1700, 19940916 to 0700, 19940919 ( 2 days ) )
         Article 91 (Disrespectful toward a noncommissioned officer- S gt )
         Article (Willfully disobey a lawful order)
         Awarded : Susp ended:

SCM:

SPCM:

- 19950217 :       Art icle (Unauthorized absence 19941107-19950102 ( 56 days ) )
         Article 112a (Wrongfully use, possession, etc of a controlled substance - marijuana)
         Article 128 (Unlawfully strike a LCpl in her face with his hand)
         Sentence : , FOP, CONF 6 months ( Pre-Trial confinement: 19950102-199502 1 6 ( 4 6 days) , Conf: 19950218-19950 222 (4 days)) , ( SUSPENDED: all confinement in excess of 60 days per PTA)

CC:

Retention Warning Counseling :

- 19940316 :       For unauthorized absence

- 19940811 :       For continued involvement of a discreditable nature with military and civilian authorities

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “ COURT MARTIAL ”
         “ (2) 940916-940919; (56) 941107-950102; ( 5 0 ) 950102-950 2 22 ”

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 P1900.16E), effective 18 August 1995 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 IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications .

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 .

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

Applicant’s Issues

1.       Nondecisional issues : Applicant seeks an upgrade in the characterization of his service at discharge in order to secure suitable employment .

2.       Decisional issues : (Clemency/Equity) Applicant contends that he was young and immature at the time of his discharge and his immaturity and youth led to his misconduct and after 13 years, A pplicant believes he has paid for his mistakes.

Decision

Date : 20 10 1220          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 entered active duty military service on a Recruiting Station Commanding Officer waiver. Additionally, the Applicant signed the USMC Drug Policy on 05 September 1991, acknowledging that he was fully aware of the Marine Corps policy of zero tolerance for drug abuse. He acknowledged the consequences of violation of that policy, in writing, prior to entry on active duty.

The Board completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure his discharge met the pertinent standards of equity. The Applicant’s record of service was marred with two 6105 retention - counseling warnings and with four non-judicial punishments for violations of the Uniform Code of Military Justice (UCMJ) : specifically, A rticle 86 (Unauthorized a bsence – 4 specifications ) , Article 91 (Insubordinate conduct toward warrant, noncommissioned, petty officer – 3 specifications), and Article 92 (Failure to obey an order or regulation). Due to continued misconduct, the Applicant ’s command referred him to a trial by Special Court - Martial . The Applicant’s command preferred charges against him for violation of the UCMJ, Article 86 (Absence without leave – Absenting himself from his unit without authority for 56 days (19941107-19950102) , Article 128 (Assault – striking a LCpl/his wife in the face with his hand) , and Article 112a (Wrongful use, possession, etc of a controlled substance – marijuana).

The Applicant entered into a pre-trial agreement with the Convening Authority ; he pled guilty at a Special Court-Martial, was found guilty in trial by judge alone, and was adjudged a sentence of a Bad Conduct Discharge, confinement for 6 months, and order ed a forfeiture of pay. As stipulated in the pre-trial agreement, all confinement in excess of 60 days was suspended for a period of 12 months unless sooner vacated due to any misconduct by the Applicant. The trial by Special Court - Martial was reviewed and affirmed by the U.S. Navy–Marine Corps Court of Criminal Appeals.

Issue 1: (Nondecisional) – The Applicant seeks clemency for a change in characterization of service from a Bad Conduct Discharge to General, Under Honorable Conditions in order to better his employment 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 clemency based on equity of the discharge. Additionally, t here is no law or regulation that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. The Applicant is directed to the Addendum , specifically , the paragraph concerning Employment and Educational opportunities.

Issue 2: (Decisional) ( ) . The Applicant contends that he was young and immature at the time of his discharge and his immaturity and youth led to his misconduct . Af ter 13 years, the A pplicant believes he has paid for his mistakes and warrants consideration by the NDRB in upgrad ing his characterization of service to General (Under Honorable Conditions) . The NDRB recognizes that many of our servicemembers are young at the time they enlist for service ; however, most still manage to serve honorably. While it is underst ood that some members may be less mature than others, the NDRB does not view the Applicant’s claim of immaturity to be a mitigating factor or a sufficient reason for misconduct. The Applicant had successfully completed Marine Corps Recruit Training and Marine Combat Training and his military occupational specialty (MOS) school. Moreover, he was assigned to the operational forces of the Fleet Marine Force for almost 2 years before his misconduct began. While the Applicant may feel his youth or immaturity was the underlying cause of his misconduct, he provided no documentation or explanation in support of this claim.

The Applicant was afforded multiple written retention-counseling warnings and was accorded no n- judicial punish ment to address his initial issues with misconduct. T he Applicant then chose to absent himself from his unit without authority for a period of 56 days ; the command declared him a deserter after the first 30 days of absen ce from the unit and dropped him from their roles. After surrender ing to military custody, he was charged with violation of Article 112a (drugs) . Violation of Article 112a is an offense requiring mandatory processing, regardless of time in service or grade, which usually result s in - a t a minimum - administrative separation with an unfavorable characterization of discharge. Commanders may also pursue confinement and punitive discharge through a Special or General Court-Martial. Additionally, violation of Article 86 (Unauthorized abs ence in excess of 30 days) is considered a serious offense , which also warrant s a punitive discharge and confinement - if adjudicated and awarded as part of a sentence by a Special or General Court-M artial.

In this specific case - d rugs, a ssault, and an extensive period of unauthorized absence - the Command chose to refer the Applicant to trial by Special Court-Martial instead of opting for the more lenient non-judicial punishment and administrative discharge process . The NDRB determined that t he reason for discharge is proper and appropriate. Additionally, the NDRB found that the evidence of record did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded. The NDRB conducted a thorough review of the available evidence, to include the Applicant’s pre-service waiver; written acknowledgment of the Marine Corps Policy for Drug Abuse; his Summary of Service; Service Record Entries; the Summary Record of Trial by Special Court-Martial; and the personal statement of t he Applicant . Based on this review, the Board determined that clemency was not warranted and the sentence awarded the Applicant at his court-martial was appropriate for the offenses committed. Relief not warranted.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, summary record of trial by S pecial C ourt -M artial, and the discharge process, the Board found that clemency was not warranted. 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 his 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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USMC | DRB | 2010_Marine | MD1000182

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