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USMC | DRB | 2010_Marine | MD1001845

Original file (MD1001845.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20100720

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)       19970626 - 19980607     Active:

Period of Service Under Review:
Date of Current Enlistment: 19980608     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20011231     Appellate Leave Date: 19991018
Length of Service : Y ea rs M on ths 09 D a ys         H ighest Rank:
Education Level:        AFQT: 97
MOS: 7253
Proficiency/Conduct M arks (# of occasions): NFIR / NFIR          Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle (2)

Periods of UA / CONF :

SPCM:

- 19990719 :       Art icle 92 (Failure to obey order or regulation, underage drinking)
         Article 121 (Larceny and wrongful appropriation, stole property valued over $100.00 from two Marines, stole property valued less than $100.00 from a Marine, and stole property valued less than $100.00 from the U. S. Government)
         Sentence : CONF 60 days (19990719-19990913, 45 days)

NJP: NONE        SCM: NONE        CC:

Retention Warning Counseling : 1

- 19990129 :       For underage drinking and using poor judgment

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 :

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

Applicant’s Issues

Non-Decisional Issues: The Applicant seeks an upgrade in the characterization of his service at discharge in order to facilitate eligibility for Department of Veterans Affairs (VA) medical benefits.

Decisional issues: The Applicant contends that his misconduct of record was resultant from a pre-existing mental health condition; as such, the A pplicant contends that he was not fully responsible for his decisions and seeks clemency.

Decision

Date: 20 1 1 1104 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 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 service record indicates he entered military service at age 17 (with parental consent) on a 4-year enlistment contract with a guarantee of training in Aviation Operations . The Applicant’s enlistment record reflects his entry into military service with a waiver for pre-service illegal drug use (marijuana) . The highest rank achieved during his enlistment was Private First Class (E-2) . The Applicant’s period of service under review reflects one paragraph 6105 retention-counseling warning for underage drinking in violation of Article 92 of the Uniform Code of Military Justice (UCMJ) . However, the Applicant’s record of service documents a trial by Special Court-Martial for violation of Article 92 ( F ailure to obey orders or regulations - underage drinking) and Article 121 ( Larceny , 4 specifications). A qualified legal defense counsel represented the Applicant throughout his trial by Special Court-Martial. T he Applicant exercised his right to trial by military judge alone and further elected to plead guilty to the four specifications of violation of Article 121 . Given the Applicant ’ s testimony and the facts of the case, the trial judge awarded the Applicant a Bad Conduct Discharge, confinement for 60 days, reduction in grade to E-1, and forfeiture of $ 600 pay per month for two months . Due to administratively applied credits for good behavior, t he Applicant served 45 days of the 60 -day confinement limitation. T he U.S. Navy–Marine Corps Court of Criminal Appeals reviewed the case with an assignment of error and affirmed the decision on 28 September 2001 , ordering the Bad Conduct D ischarge executed .

Nondecisional issue - The Applicant seeks an upgrade in the characterization of his service at discharge in order to facilitate eligibility for VA medical benefits. There is no requirement, or law, that grants re-characterization solely on the issue of facilitating VA benefits ; as such, the NDRB has no authority to upgrade a discharge solely for th is purpose and cannot form a basis of relief. No action warranted.

Issue 1 (Clemency/Equity) PARTIAL RELIEF WARRANTED. The Applicant contends that his misconduct of record was resultant from a pre-existing mental health condition; as such, he contends that he was not fully responsible for his decisions and seeks clemency. The Applicant ’ s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The NDRB reviewed all of the available records, supporting documents, facts, elements of discharge, and circumstances unique to this case. Given the unique circumstances of the case, coupled with the reason for , and the nature of , the misconduct, the NDRB determined that the punishment was inequitably harsh and that some form of relief was warranted. The NDRB further determined that the Applicant’s assertion of mental illness was not a mitigating factor. There is nothing in the record, nor did the Applicant provide any documentation, to show that mental illness mitigated his repetitive misconduct.

C haracterization of service at discharge is recognition of the quality of a Marine ’s performance and conduct. Most Marines serve honorably; in fairness to them , commanders and separation authorities are tasked to ensure that service members receive no higher characterization than is due. A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. However, a n Under Other Than Honorable Conditions discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service. A fter reviewing the Applicant’s record , the supporting documentation, and the evidence of record contained in the record of trial, the NDRB discerned an inequity in the characterization of service and determined that some form of clemency was warranted . Furthermore, the NDRB determined that the Applicant’s misconduct of record was conduct involving one or more acts or omission s that did constitute a significant departure from the conduct expected of members of the Naval Service. As such, by a vote of 3-2, the NDRB determined that the characterization of service shall change to Under Other Than Honorable Conditions. Partial relief granted. Full relief to General (Under Honorable Conditions) was not granted due to the seriousness of the misconduct.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, the record of trial by Special Court-Martial, and the discharge process, the Board found that Therefore, the awarded characterization of service shall UNDER OTHER THAN HONORABLE CONDITIONS, but 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 .

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 .

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 | MD1001845

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