Upgrade.Vet

USMC | DRB | 2010_Marine | MD1001076

Original file (MD1001076.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20100326

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)       19901210 - 19911027     Active: 19911028 – 19950731 (HON)
                           Member transferred to the IRR , eff ective 199500801

Period of Service Under Review:
Date of Current Enlistment: 19970 1 28     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20020923      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 26 D a y ( s )
Education Level:        AFQT: 39
MOS: 3381
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports: (4)

Awards and Decorations ( per DD 214):      Rifle MM , (x2), (x2), , , , MertMast, CertCom (2)

Periods of UA : 20000621 – 20000913 (83 days)
Periods of CONF : Pre-Trial Conf 20000914 – 20001102 (48 days); Conf 20001103 – 20001106 (4 days)

NJP:     SCM:

SPCM:

- 20001102 :       Art icle (Absent without leave; specifically, absent from his unit without authorization for more than 30 days (20000621 – 20000913), terminated by apprehension by civilian law enforcement)
         Art icle 87 – Missing movement through neglect; specifically, missed unit deployment to Okinawa, Japan while in a period of unauthorized absence)
         Art icle 95 (Resisting apprehension, flight, breach of arrest, escape; specifically, escaping from custody)
         Sentence Adjudged : , 100 days, ,

CC:     Retention Warning Counseling :

Types of Documents Submitted/reviewed
Related to Military Service:
         DD 214:          Service/ Medical Record:          Other Records:
                                             Verbatim Record of Trial by SPCM
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. 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 503, Equity .

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

Applicant’s Issues

D ecisional I ssue : The Applicant contends that his discharge was unfair and unjust resulting from one isolated incident in what was otherwise a clean service record; accordingly, the Applicant seeks an upgrade in characterization of his service at discharge to Honorable.

Decision

Date : 20 1 1 04 29 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 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 period of service under review reflects no 6105 retention-counseling warnings or nonjudicial punishment for violation s of the Uniform Code of Military Justice (UCMJ). However, the Applicant’s service record does contain punitive punishment as adjudged by a S pecial C ourt -M artial . Qualified defense counsel represented the Applicant during trial by Special Court-Martial. The Applicant was subject to Special Court - Martial on 0 2 Nov 2000 for violation of Article 86 (Unauthorized absence, 83 days) , Article 87 ( M issing movement, through neglect), and Article 95 ( Escaping c ustody); he was adjudged a Bad C onduct Discharge, ordered to 100 days of confinement, reduc ed in rank to Private/E-1, and was ordered a forfeiture of pay.

In accordance with the his signed pre-trial agreement, the Applicant requested trial by military judge alone and further elected to plead guilty to the charge of violation of Article 8 6 , Article 8 7 , and Article 95 of the UCMJ for consideration of limitation in sentencing of confinement to 65 days . In a Special Court - Martial trial by judge alone, the Applicant was found guilty of violating the UCMJ as specified. The Applicant served the remaining confinement on his sentence after receiving credit for 48 days of pre-trial confinement , already served. The case was submitted for review with out an a ssignment of error to the U.S. Navy–Marine Corps Court of Criminal Appeals; it was reviewed and the findings were affirmed on 9 May 2002 . Subsequently, the Bad Conduct Discharge was ordered executed on 22 August 2002 .

D ecisional Issue. (Clemency/Equity) - RELIEF NOT WARRANTED. The Applicant contends that he warrants clemency because he believes hi s discharge was unfair and unjust; it was a single incident in what was otherwise an honorable enlistment period. 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. Certain serious offenses warrant separation from the service to maintain proper order and discipline; violation of Articles 85, 86 (greater than 30 days), and 87 are such offenses. Adjudication of violations of the UCMJ such as these usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and confinement when adjudicated and awarded as part of a sentence by a special or general court-martial. Given that the Applicant was apprehended by civilian law enforcement instead of surrendering himself back to military custody and then broke military apprehension and fled custody, the command opted to pursue punitive action instead of the more lenient nonjudicial punishment or summary court - martial and an administrative discharge. Given the unique circumstances of this case, the NDRB determined that referral to court-martial for punitive action was not unjust or unfair and was warranted. The NDRB found the evidence of record, along with the Applicant’s statements, did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded. Given the unique circumstances of the case and the standards of discipline of the Naval Service , the NDRB agreed unanimously that the punishment was equitable . Therefore, after reviewing the Applicant’s issue, the supporting documentation, and the evidence of record contained in the verbatim record of trial, the NDRB discerned no inequity in the characterization of service and determined that clemency was not warranted. Relief denied .

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, the verbatim transcript record of trial by Special Court-Martial, and the discharge process, the NDRB found that Therefore, the awarded characterization of service shall BAD CONDUCT DISCHARGE 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 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 | MD1001076

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