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USMC | DRB | 2010_Marine | MD1000344

Original file (MD1000344.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20091113

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)       19960703 - 19961112     Active:

Period of Service Under Review:
Date of Current Enlistment: 19961113     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20011218      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 15 D a y ( s )
Education Level:        AFQT: 53
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

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

Periods of UA / CONF :     UA 19970618 (1 day )
UA 19990912-19990927 (15 days )
UA 19991002- 19991019 (17 days)
CONF 19991019-19991123 (35 days)
CONF 19991123- 19991206 ( 13 days )

NJP:

- 19970707 :      Article (Absence without leave from squad leader’s course)
         Awarded: Suspended:

- 19970903 :      Article (Failure to obey order, underage drinking , 19970816 )
         Article (Drunken driving , 19970816 )
         Awarded: Suspended:

- 199 9 0 819 :      Article (Absence without leave , 19990711 )
         Article ( Failure to obey order, 19990714)
         Awarded: Suspended:

SCM:

SPCM:

- 19991123 :       Art icle (Absence without leave), 2 specifications
                  Specification 1: UA 19990912 – 19990927 (15 days)
                  Specification 2: UA 19991002 – 19991019 (17 days)
         Art icle (Missing movement through neglect, b/w 19991002 – 19991018)
         Sentence : 60 days

CC:

Retention Warning Counseling :

- 19970908 :       For misconduct. Specifically you were seen at BN level NJP on 970903 for violation of Art 92. You consumed alcoholic beverages while under the legal age. Also Art 111, drunken driving.

- 19990825 :       For misconduct. Specifically , Art 86 (UA) and Art 92 (disobeying a direct order from the 1stSgt).

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 .

D . 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 87 .

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

Applicant’s Issues

1.       Applicant claims his youth and immaturity led to poor decisions resulting in his misconduct.
2.       Applicant contends he was separated for isolated incidents of minor misconduct , which were a result of his drinking.
3.       Applicant contends his post-service achievements are indicative of his true character.

Decision

Date: 20 1 1 0 1 07          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 . 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 identif ied three decisional issues for the Board ’s consideration . The Board complete d a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent sta ndard s for equity. The Applicant’s record of service included 6105 counseling and retention warnings for underage drinking and drunken driving (8 Sep 1997) and unauthorized absence and failure to obey an order (25 Aug 1999). The record also reflected for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave, 2 specifications: UA from squad leader’s course (date NFIR) and UA from appointed place of duty ( 11 Jul 1999 ) ; Article 92 ( Failure to obey order or regulation, 2 specifications: underage drinking ( 16 Aug 1997 ) and failure to obey 1stSgt ( 14 Jul 1999 ) ; and Article 111 ( Drunken driving , 16 Aug 1997 ) . Based on two specifications of UA and missing ship’s movement, command referred him to trial by special court-martial.

: (Decisional) ( ) . The Applicant claims his youth and immaturity led to poor decisions , resulting in his misconduct. T he NDRB recognizes that serving in the U.S. Marine Corps is challenging. Nevertheless, all Marine s are expected to uphold the standards of conduct expected of members of the Naval Service. When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under H onorable conditions. In the Applicant’s case, he was awarded a punitive discharge as a result of trial by special court-martial. Sentences adjudicated by courts-martial, and subsequently reviewed and affirmed via the appellate review process, are considered factual and may only be considered by the NDRB for clemency review. While the Applicant may feel his youth and immaturity were the underlying cause of his misconduct, the board determined that t his issue did not provide a basis upon which a clemency review could be conducted. R elief denied .

: (Decisional) ( ) . The Applicant contends he was separated for isolated incidents of minor misconduct , which were a result of his drinking. After reviewing the Applicant’s record, it is clear that the misconduct that led to his trial by special court-martial and subsequent punitive discharge was not isolated nor was it minor . After two NJPs early in his enlistment (July 1997 and Sep 1997) , the Applicant’s record showed no officially documented misconduct for nearly two years (Sep 1997 to Jul 1999). In late August 1999 , he was found guilty at NJP for violation of UCMJ Article 86 (UA) and Article 92 (Failure to obey an order). Two months later he went UA for 15 days (12-27 Sep 1999) and then UA again for 17 days (02-19 Oct 1999), which then caused him to miss his unit deployment to Okinawa, Japan, a violation of UCMJ Article 87 , which is considered commission of a serious offense and punishable by up to 12 months of confinement and a B ad C onduct D ischarge if adjudicated by special or general court-martial. The Applicant’s conduct reflect ed his continual and willful failure to meet the requirements of the Naval Service and provided the basis for his referral to , and subsequent conviction at , special court-martial. Therefore, the board determined that this issue did not provide a basis upon which a clemency upgrade could be granted . R elief denied .

: (Decisional) ( ) . The Applicant contends his post-service achievements are indicative of his true character. The Applicant provided documentation that included: a reference letter from his church; a character reference letter; and certification of non-involvement with civil authorities. Though not submitted, the Applicant could have provided: a verifiable employment record; ; completion of alcohol rehabilitation; evidence of financial stability; college or vocational school transcripts; documentation of community or church service; and marriage or child birth certificates (as applicable). The NDRB considers post-service conduct in order to determine if the misconduct committed during active duty was indicative of the Applicant's character or an aberration. However, there is no law or regulation that provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. 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.

The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The re ason for discharge, convicted by special court-martial, is appropriate. T he NDRB did not find sufficient evidence of mitigating or extenuating factors that would offset the seriousness of the offenses for which the discharge was awarded. After a thorough review of the Applicant’s record s , issues and evidence submitted by the Applicant , established standards of discipline, post - service accomplishments , and the time passed since the B ad Conduct Discharge , the Board determined that clemency was not warranted. R elief denied .

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and punitive discharge process, the Board found the discharge to be proper and equitable and 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 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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USMC | DRB | 2010_Marine | MD1000344

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