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USMC | DRB | 2010_Marine | MD1001941
Original file (MD1001941.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20100729
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)       20030625 - 20030720     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20030721     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070606      H ighest Rank:
Length of Service : Y ea rs M on ths 17 D a ys
Education Level:        AFQT: 53
MOS: 6300
Proficiency/Conduct M arks (# of occasions): /          Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle EX NDSM GWOTSM

Periods of UA / CONF :

NJP: NONE         SCM: NONE                  CC:      Retention Warning Counseling : NONE
SPCM: 1
- 20040315 :       Art icle 80 (Attempts, 2 specifications )
         Specification 1: With attempt to defraud, falsely pretend to Foot Locker that he was PFC D. to wrongfully obtain various goods valued about $152.36
         Specification 2: Attempt to steal U. S. currency, the property of Navy Federal Credit Union
          Article 121 (Larceny and wrongful appropriation, 3 specifications )
         Specification 1: Stole U. S. currency, of a value of about $301.00, the property of Navy Federal Credit Union
         Specification 2: Stole a Navy Federal Credit Union debit card
         Specification 3: Stole U. S. currency, of a value of about $28.19, the property of Foot Locker
          Article 134 (General A rticle, 2 specifications )
         Specification 1: Falsely pretend to Spirit Airlines that he was PFC D. and wrongfully obtain services of a value of about $253.00
         Specification 2: Falsely pretend to Greyhound that he was PFC D. and wrongfully obtain services of a value of about $133.50
          Sentence : RIR FOP CONF 12 months (20040315 – 20040921, 186 days) BCD
         Convening Authority Action: All confinement in excess of 240 days was suspended

Administrative Corrections to the Applicant’s DD 214

The NDRB note d an administrative error on the original DD Form 214:

          “ BAD CONDUCT DISCHARGE ”

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 P1900.16F), 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 .



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

Applicant’s Issues

 1.       Nondecisional Issues: The Applicant seeks an upgrade in the characterization of his service at discharge in order to facilitate reenlis tment into the armed services.

2.       Decisional Issues: The Applicant did not identify any specific issues related to the equity of his discharge characterization , however, by submission of his request for discharge review , he has sought consideration for clemency.

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 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, 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 , as stated in a court-martial , are presumed by the NDRB to be established facts. The Applicant did not identify any specific issues related to the equity of his discharge action to the NDRB , h owever, the NDRB completed a thorough review of the circumstances that led to his discharge and the discharge process. As such, the Applicant ’ s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.

T he Applicant’s service record documents his entry into the military service at the age of 18 on a 4 -year enlistment contract for guaranteed training in Avionics Electronics Maintenance. The Applicant’s enlistment record further reflects his entry into military service with out a requirement for a waiver to enlistment or induction standards. The highest rank achieved by the Applicant during his enlistment was E-2/Private First Class. The Applicant’s record of service documents no administrative retention-counseling warnings or nonjudicial punishments. However, it does document a punitive S pecial C ourt- M artial for violations of the UCMJ : Article 80 (Attempts , 2 specifications ) , Article 121 (Larceny and wrongful appropriation, 3 specifications ) , and Article 134 (General A rticle, 2 specifications ). A qualified legal defense counsel represented the Applicant throughout the trial by Special Court-Martial. In accordance with a written and signed pre-trial agreement (PTA), the Applicant agreed to trial by military judge alone and further elected to plead guilty to the charges. In consideration, the C onvening A uthority agreed to withdraw or reduce charges and to suspend all confinement adjudged in excess of 240 days. Given the facts of the case, the trial judge awarded the Applicant a Bad Conduct Discharge and confinement for a period of 12 months. A request for clemency was submitted to the Convening Authority for consideration , and after review, the case was submitted for appellate review , without an assignment of error , to the U.S. Navy–Marine Corps Court of Criminal Appeals. The case was reviewed and the findings were affirmed on 17 May 2005 . Having been upheld through appellate review, the Navy and Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed . The Applicant’s final discharge was issued on 06 June 2006 . Besides his DD Form 293 and his personal statement , the Applicant provided no other documentation in support of his request f or consideration by the NDRB.

Nondecisional issue - The Applicant seeks an upgrade in the characterization of his service at discharge from Bad Conduct to General (Under Honorable Conditions) in order to facilitate reenlistment in the armed forces . There is no requirement, or law, that grants re-characterization solely on the issue of reenlisting . In respect to a Bad Conduct Discharge, regulations limit the NDRB’s review solely to a determination of clemency in consideration of the equity of the discharge. As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.



Board Review (Clemency/Equity) - CLEMENCY NOT WARRANTED. The Applicant contends that he warrants clemency regarding the characterization of his service at discharge by submission of his request for review. 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 6 months in which time he was referred to a trial by Special Court - Martial. The Applicant ’ s record of misconduct includes a pattern of serious misconduct related to falsely representing himself as another Marine to fraudulently receive services and benefits and theft of that Marine ’ s finances from his banking institution . These charges are serious misconduct, punishable with a Bad Conduct Discharge and up to 6 months confinement for each charge, if adjudicated and awarded as part of a sentence at a trial by court - martial. The stated misconduct resulted in the Special Court - Martial awarding a punitive Bad Conduct Discharge and confinement for 12 months.

The NDRB recognizes that many of our service members are young at the time they enlist for service, however, most manage to serve their enlistment s honorably. While some members may be less mature than others, the NDRB does not view a member’s youth or immaturity to be a mitigating factor or a sufficient reason for misconduct, especially repetitive misconduct. Certain serious offenses warrant separation from the service in order to maintain good order and discipline. The theft/larceny of an individual service member’s personal property for personal gain and wrongfully representing oneself as someone else to gain services is not minor misconduct and warranted punitive disciplinary action. The NDRB found that the evidence of record, along with the Applicant’s statement, did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded. Given the short period of the Applicant’s service, coupled with the deliberate nature of the misconduct, the NDRB agreed unanimously that the punishment, as awarded, was equitable and that relief in the form of clemency is not warranted. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, the transcript record of trial by Special Court-Martial, and the discharge process, the NDRB determined 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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