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USMC | DRB | 2010_Marine | MD1001946

Original file (MD1001946.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20100804

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)       20040823 - 20050626     Active:

Period of Service Under Review:
Date of Current Enlistment: 20050627     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20091201      H ighest Rank:
Length of Service : Y ea rs M on ths 05 D a ys
Education Level:        AFQT: 75
MOS: 6073
Proficiency/Conduct M arks (# of occasions): 4.4 ( 8 ) / 4.3 ( 8 )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle EX (2) GCM GWOTEM SSDR GWOTSM NAVY”E ” NDSM

Periods of UA :

NJP: NONE        SCM: NONE        CC:      Retention Warning Counseling : NONE

SPCM: 1

- 20081216 :       Art icle 81 (Conspiracy, 2 specifications )
         Specification 1: Wrongfully conspire d to sell military property
         Specification 2: Wrongfully conspire d to steal military equipment
         Article 108 (Military property of the United States - loss, damage, destruction, or wrongful disposition, 2 specifications )
         Specification 1: Wrongfully sold 1 , 040 rounds of 5.56mm ammunition, 350 rounds of 5.56mm tracer ammunition, 1 M-16A2 magazine, 1 pop flare star cluster, and 318 rounds of 7.62mm ammunition to an NCIS Special Agent
         Specification 2: Wrongfully sold 2 M115A2 artillery simulators to an NCIS Special Agent
         Article 121 (Larceny and wrongfu l appropriation, wrongfully sto l e military property, to wit: 1 , 040 rounds of 5.56mm ammunition, 350 rounds of 5.56mm tracer ammunition, 1 M-16A2 magazine, 1 pop flare star cluster, 318 rounds of 7.62mm ammunition, and 2 M115A2 artillery simulators )
         Sentence : R eduction in Rank to E- 1, , FOP , 90 days (20081216 - 20090227, 74 days ser v ed )

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative errors 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

Decisional Issues. The Applicant contends his characterization of his service at discharge was inequitable : H e was not afforded an opportunity for rehabilitation , it was an isolated incident in what was otherwise honorable service , he was young and immature , and he was improperly represented as an E-3, vice E-4, at the court - martial, which he contends influenced the outcome. Additionally, the Applicant asks that the NDRB consider his post - service accomplishments as an indicator that his misconduct was an aberration in what was otherwise a stellar career .

Decision

Date: 20 1 1 1117 Location: Washington D.C . R epresentation : NONE

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 par ticular 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 under an Aviation Maintenance Training guarantee. The Applicant’s enlistment record reflects his entry into military service with out any waiver s to enlistment standards . The Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 20 August 2004 as a function of his application for enlistment . The Applicant is a combat service veteran, having served in Iraq in support of Operation IRAQI FREEDOM from 02 April 2007 until 30 September 2007. The highest rank achieved by the Applicant during his enlistment was Lance Corporal\ E-3.

The Applicant’s period of service under review reflects no 6105 retention-counseling warnings or non-judicial punishments for violation s of the Uniform Code of Military Justice (UCMJ). However, the Applicant’s service record does document a punitive punishment adjudged at a trial by S pecial C ourt -M artial convened on 16 December 2008. The Applicant was subject to Special Court - Martial for alleged violation s of : Article 81 (Conspiracy , 2 specifications , w rongfully conspire d to sell military property and w rongfully conspire d to steal military equipment ) , Article 108 (Military property of the United States - loss, damage, destr uction, or wrongful disposition , 2 specifications , w rongfully sold 1 , 040 rounds of 5.56mm ammunition, 350 rounds of 5.56mm tracer ammunition, 1 M-16A2 magazine, 1 pop flare star cluster, and 318 rounds of 7.62mm ammunition to an NCIS Special Agent and w rongfully sold 2 M115A2 artillery simulators to an NCIS Special Agent ) , and Article 121 (Larceny and wrongful appropriation, wrongfully st ol e military property ). Based on the offenses committed by the Applicant, he was a djudicated a B ad C onduct D ischarge at trial by S pecial C ourt- M artial. In accordance with a signed pre-trial agreement, the Applicant agreed to request trial by military judge alone and further elected to plead guilty to the charges and specifications as agreed and provided a signed w ritten stipulation to the fact as a part of his plea of guilty. In consideration, the Convening Authority withdrew the excepted wording and agreed to limit any adjudged period of confinement to no more than 270 days , if a BCD was adjudged . Given the facts of the case, the trial judge awarded the Applicant a Bad Conduct Discharge, order ed that he be confined for a period of 90 days, ordered a forfeiture of pay, and reduced the Applicant in rank to Private /E-1 . The case was submitted for review with out any assignment of error to the U.S. Navy–Marine Corps Court of Criminal Appeals; it was reviewed and the findings were affirmed on 31 July 2009 . Subsequently, the Navy Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed and the Applicant was discharge d on 01 December 2009 .

(Decisional Issues) (Clemency/Equity) - CLEMENCY NOT WARRANTED. The Applicant contends his characterization of his service at discharge was inequitable: H e was not afforded an opportunity for rehabilitation , it was an isolated incident in what was otherwise honorable service , he was young and immature , and he was improperly represented as an E-3, vice E-4, at the court - martial, which he contends influenced the outcome. Additionally, the Applicant asks that the NDRB c onsider his post - service accomplishments as an indicator that his misconduct was an aberration in what was otherwise a stellar career. The NDRB conducted a thorough review of the Applicant’s discharge under the pertinent standard of equity to determine if any factors in this particular case merited clemency. 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 NDRB recognizes that many of our service members are young at the time they enlist for service, but most manage to serve honorably. While some members may be less mature than others, the NDRB does not view a member’s youthfulness to be a mitigating factor or a sufficient reason for misconduct, especially r epetitive misconduct involving theft and conspiracy . The NDRB determined that the Applicant’s youth or immaturity was not a mitigating factor in this case. Additionally, c ertain serious offenses warrant separation from the service to maintain proper order and discipline. Furthermore, though t h ese offenses may warrant an administrative separation and an unfavorable characterization of discharge , at a maximum, they also rate a punitive discharge and possible confinement for up to 12 months if adjudicated and awarded as part of a sentence by a S pecial or G eneral C ourt- M artial. In the Applicant’s case, t he command determined that retention and rehabilitation were not in the best interest of the service ; as such, they chose to pursue punitive discharge and punishment via a trial by S pecial C ourt -M artial .

The Applicant’s contention regarding his proper rank at the time of the court-martial was addressed by the trial judge and attorneys in a hearing before the court - martial was convened ; the Applicant was determined to be a Lance Corporal, not a Corporal, at the time of trial. All relevant and material facts stated in a court-martial are accepted by the NDRB to be established facts ; a s such, this is not a decisional issue for the NDRB.

The Applicant contends his post-service conduct warrants consideration for an upgrade to Honorable. The NDRB considers 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. Besides the Applicant’s statement on the DD Form 293, he provided documentation of his service with the San Diego Transit Police and letters of reference from his co-workers and supervisors. The Applicant should be aware submission of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the NDRB on a case-by-case basis. The NDRB determined the Applicant did not provide sufficient post-service documentary evidence to form a bas is of relief.

Th e NDRB found the evidence of record did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded. Given the conspiracy to sell, and the overt act of selling military ammunition and explosives , in violation of Federal and State laws , Department of Defense Regulations , and M arine Corps Policy , coupled with the repetitive and deliberate nature of th at misconduct, the NDRB agreed unanimously that the punishment, as awarded, was equitable , and that relief in the form of clemency was not warranted. Accordingly, relief is denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, the verbatim record of trial, 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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USMC | DRB | 2010_Marine | MD1001946

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