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USMC | DRB | 2010_Marine | MD1001940
Original file (MD1001940.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20100727
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)       19911124 - 19911202     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19911203     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19980225      H ighest Rank: LANCE CORPORAL
Length of Service : Y ea rs M on ths 23 D a ys
Education Level:        AFQT: 33
MOS: 3381
Proficiency/Conduct M arks (# of occasions): (12) / (11)          Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle MM NDSM SSDR (2) LOA COC MM

NJP: 2
- 19941110 :      Article 86 (Absence without leave, 2 specifications )
         Specification 1: UA, failed to go at the time prescribed to the mess hall
         Specification 2: UA, 19941016 - 19941019, 4 days
         Awarded: FOP RESTR EPD Suspended: FOP

- 19950717 :      Article 86 (Absence without leave, UA, 19950613 - 19950616, 4 days)
         Awarded: FOP RESTR EPD Suspended: FOP

SCM: NONE         CC:    

SPCM:
- 19961031 :       Art icle 86 (Absence without leave, UA, 19950830 - 19960919, 387 days , apprehended )
         Sentence : RIR FOP CONF 70 days (19960919 - 19961031, 42 days) BCD

Retention Warning Counseling : 1
- 19950718 :       For continued lack of good judgment and responsibility, specifically concerning the recent three days of unauthorized absence from appointed place of duty

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative errors on the original DD Form 214:

          “BAD CONDUCT DISCHARGE ”
“COURT-MARTIAL ”

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 .

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.       Decisional Issue - The Applicant seeks clemency in the form of an upgrade in the characterization of his service at discharge, contending that his discharge was inequitable , because it was based on an isolated incident .

Decision

 Date: 20 1 1 1109           Location: Washington D.C .         R epresentation : NONE

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 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. As such, the Applicant ’ s case was considered under the pertinent standards of equity to determine if any factors in this par ticular case merited clemency.

T he Applicant’s record of service includes one 6105 retention-counseling warning and two nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, 3 specifications ). Moreover, the Applicant was also subject to a trial by for of the UCMJ: Art icle 86 (Absence without leave - absenting himself from his unit, without authority, and did remain so absent from 19950830 to 19960919 (387 days), absence terminated by civilian law enforcement apprehension). A qualified legal defense counsel represented the Applicant throughout his trial by Special Court-Martial. Given the facts of the case, the S pecial C ourt -M artial awarded the Applicant a Bad Conduct Discharge, reduction in rank to E-1, a forfeiture of pay for 5 months, and confinement for a period of 70 days. The Navy and Marine Corps Parole and Clemency Board reviewed the Applicant’s request for clemency and denied it. The case was submitted for review to the U.S. Navy–Marine Corps Court of Criminal Appeals without assignments of error; it was reviewed and the findings were affirmed. Subsequently, the Navy Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed. The Applicant’s final discharge was effected on 25 February 1998 .

Decisional Issue: (Clemency/Equity) CLEMENCY NOT WARRANTED. The Applicant seeks clemency in the form of an upgrade in the characterization of his service at discharge, contending that his discharge was inequitable , because it was based on an isolated incident. In response to the Applicant ’ s clemency request, relevant and material facts , as stated in a court-martial , are presumed by the NDRB, to be established facts. The NDRB conducted a thorough review of the Applicant’s discharge under the pertinent standards of equity to determine if any factors in this particular case merited clemency.

The Applicant’s service record documents a period of service of approximately 3 years and 9 months prior to his absenting himself from his unit; prior to this misconduct, he was subject to two Nonjudicial Punishme nts for Unauthorized Absence . With only three months remaining on the Applicant’s enlistment contract, his unit was scheduled to deploy to Cuba in support of T ask Force 160 ( migrant security operations ) . The Applicant requested authorization to remain behind from the deployment , but he was denied ; however, the command authorized 10 days annual leave prior to the deployment. The Applicant executed his approved leave, and then knowingly absented himself from his unit, without proper authority, by not returning. After 30 days of absence, the command dropped the A pplicant from the unit’s rol l s and declared him a deserter. After 387 days, the Applicant’s unauthorized absence was terminated when local civilian law enforcement authorities apprehended him. The Applicant’s service record documents a n established pattern of misconduct related to unauthorized absence and a general failure to conform to military rules and regulations. Due to the Applicant’s refusal to conform to the expected conduct of a United States Marine after administrative punishment and retention counseling, coupled with the need to ensure good order and discipline of the service, the Command referred the final unauthorized absence charge (387 days) to trial by Special Court - Mart ial.

D espite a servicemember’s prior record of service , certain serious offenses warrant separation from the Naval Service to maintain proper order and discipline. Unauthorized absence in excess of 30 days is a serious offense, and if terminated by apprehension, warrants a maximum punishment of a Dishonorable Discharge and one and a half years of confinement if adjudicated and awarded at trial by court - martial. The pattern of documented unauthorized absences and general contempt for good order and discipline is not minor misconduct and supports the findings of the court - martial in awarding a Bad Conduct Discharge. The NDRB found that the evidence of record, along with the Applicant’s statement and supporting documentation, did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded. Given the excessive period of absence, coupled with the intent to avoid an operational deployment and the repetitive nature of misconduct in the Applicant’s service record , the NDRB agreed unanimously that the punishment, as awarded, was warranted and was equitable; relief in the form of clemency is not warranted.

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 NDRB determined that clemency was not warranted. 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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