Upgrade.Vet

USMC | DRB | 2010_Marine | MD1001947

Original file (MD1001947.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)       19970211 - 19970224     Active:

Period of Service Under Review:
Date of Current Enlistment: 19970225     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070427      H ighest Rank:
Length of Service : Y ea rs M on ths 03 D a ys
Education Level:        AFQT: 38
MOS: 3531
Proficiency/Conduct M arks (# of occasions): 4.3 / 3.6    Fitness Reports:

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

Periods of UA / CONF :

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

S P CM: 1

- 20000414 :       Art icle 80 (Attempts, attempted larceny of $1,700.00 worth of merchandise from the Marine Corps Exchange)
         Article 86 (Absence without leave, did absent himself from his unit, without authority, on 19990907 and did remain so absent until 19991026 ( 50 days) )
         Article 121 (Larceny and wrongful appropriation, 2 specifications )
         Specification 1: Stole car stereo, property of the Marine Corps Exchange, valued in excess of $100.00
         Specification 2: Stole electronic device, property of the Marine Corps Exchange, valued in excess of
        $100.00
         Sentence : BCD, RIR , E-1 , FOP , CONF 6 months (2000414 - 20000908, 148 days)

Administrative Corrections to the Applicant’s DD 214

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

         “ 19990907 - 19991026 (50), 20000414 - 20000908 (148) ”

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

Nondecisional Issues: The Applicant seeks a change in his reenlistment code (RE-Code) and characterization of service in order to facilitate reenlistment in the Army or work for the Government .

Decisional Issues: The Applicant did not identify any issues related to the equity of the discharge action for the NDRB to consider when de termining matters of clemency.

Decision

Date: 20 1 1 1205 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 Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. Additionally, the NDRB completed a thorough review of the circumstances that led to his discharge and the discharge process to ensure the discharge met the pertinent stan dards of equity and propriety.

The Applicant’s record of service included one S pecial C ourt- M artial for violations of the Uniform Code of Military Justice ( UCMJ ) : Article 80 (Attempts - attempted larceny of $1,700.00 worth of merchandise from the Marine Corps Exchange) , Article 86 (Absence without leave, a bsent from his unit without authorization from 19990907 to 19991026 ( 50 days) ) , and Article 121 (Larceny and wrongful appropriation , 2 specifications ). On 14 April 2000, a Special Court - Martial adjudged a sentence of reduction to the pay grade of E-1 , confinement for a period of six months , a forfeiture of pay , and discharge from the U.S. Marine Corps with a Bad Conduct Discharge. The sentence was approved and, except for the Bad Conduct Discharge, was ordered executed. On 27 July 2000 , the Applicant petitioned for clemency to the Convening Authority, which was denied. The record of tri a l was completed and authenticated on 14 Aug 2000 and forwarded for action to the Convening Authority; his required actions were completed on 07 May 2001. Due to unknown reasons for delay, the record of tri a l was not received by the Navy-Marine Corps Appellate Review Activity until 09 August 2006 (1 , 920 days after sentencing). The court - martial was submitted for mandatory appellate review with the Navy and Ma r ine Corps Court of Appeals . The Appellate review judges opined that the excessive delay in processing the 195-page record of trial was so unreasonable that it warranted a due process review. The Court of Appeals decided that this case did violate the Applicant’s due process rights and that the Applicant did suffer prejudice due to the delay. As such, the Appellate Court affirmed the findings of the Convening Authority , but only so much as to the sentence of confinement, forfeiture, and reduction in grade. The findings of the Appellate Court were returned to the Navy and Marine Corps Appellate Leave Activity for final discharge action; as the Bad Conduct Discharge finding was not affirmed by the Appellate Review, the Applicant was discharged with a General (Under Honorable Conditions) characterization of service.

Nondecisional Issue - The Applicant seeks a change in his reenlistment code (RE-Code) and characterization of service in order to facilitate reenlistment in the Army or work for the Government. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the armed forces, and is not authorized to change a reentry code. Only the Board for Correction of Naval Records can make changes to reenlistment codes. A request for a waiver may be submitted through a recruiter during the processing of a formal application for reenlistment; neither a less than fully honorable discharge, nor an unfavorable R E code is, in itself, a bar to reenlistment . Additionally, t he NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities. Regulations specifically limit the NDRB’s review to a determination of the propriety and equity of a discharge or, in the case of a court - martial, a determination of clemency based on equity of the discharge. There is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. The Applicant is directed to the Addendum , specifically the paragraph concerning Employment and Educational opportunities.

Decisional Issue (NDRB Board Review) (Clemency/Equity) CLEMENCY NOT WARRANTED. The Applicant did not identify any issues related to the equity of the discharge action for the NDRB to consider when determining matters of clemency. However, the NDRB conducted a detailed review of the Applicant’s discharge action, and the discharge process, to determine if any clemency related to the equity of the discharge was 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 , as 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.

An Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for N aval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. 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. The NDRB determined that the administrative handling error s, which resulted in the appellate review due process violation and the non-affirmation of the Bad Conduct Discharge, did result in de-facto clemency for the Applicant. However, the misconduct of record, which the Appellate Review Court did affirm, is conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service and did not support any other form of clemency. By a vote of 5-0, the NDRB determined that the Applicant’s request for a change in his characterization of service at discharge to Honorable was not warranted and would be inappropriate . Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, the record of Special Court - Martial conviction (to include all appeals and requests for clemency), and the discharge process, the NDRB found the discharge was proper and equitable , as affirmed . Therefore, the awarded characterization of service shall remain 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 his discharge. The Applicant is directed to the Addendum for additional information.

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 | MD1001947

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