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USMC | DRB | 2010_Marine | MD1001954
Original file (MD1001954.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20100809
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)       19921210 - 19930307     Active:   19930308 - 19970106 HON
                                    USMC 19970107 - 20000524 HON

Period of Service Under Review:
Date of Current Enlistment: 20000525     Age at Enlistment: 26
Period of E nlistment : Years Months
Date of Discharge: 20050511      H ighest Rank:
Length of Service : Y ea rs M on ths 17 D a ys
Education Level:        AFQT: 34
MOS: 3381
Proficiency/Conduct M arks (# of occasions): /         Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle SS Pistol MM GCM (3) NDSM (2) NUC (2) COC (2) LOA (3) CO A

Period of CONF : 20021022 - 20021024, 3 days

Period of Time Lost per DD214 : 20030404 - 200 3 0422, 19 days

NJP: NONE        SCM: NONE                  CC:

SPCM: 1

- 20030331 :       Art icle 134 ( 2 specifications)
         Specification 1 - Did wrongfully commit indecent acts of a sexual nature with a woman , not his wife
         Specification 2 - On or about 22 Oct 2002, was, on board Schofield Barracks, drunk and disorderly which conduct was of a nature to bring discredit u pon the armed forces
         Sentence : RIR E-1 , CONF 5 months , BCD
         Convening Authority Action: All confinement i n excess of 3 months is suspended

Retention Warning Counseling : 3

-19940308: For failure to maintain sufficient funds, writing bad checks, and poor personal finances .

-19960411:       For initial assignment to the Marine Corps Body Composition Program for failing to abide by Marine Corps height and weight standards.

- 20010510 :       For an incident that took place on 20010501 , where you physically abused a Marine - as a ritual - due to th e Marine turning the age of 21 .




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: T he Applicant seeks an upgrade in the characterization of his service at discharge in order to facilitate access to Department of Veterans Affairs (VA) benefits.

Decisional Issues: The Applicant seeks clemency . I t has been 6 years since the court - martial conviction and the Applicant contends that the Bad Conduct discharge was overly harsh for a common social error and has prevented him from being able to reenter society effectively. The Applicant contends that he is having to relive the punishment every day and seeks an upgrade in the f orm of clemency from the NDRB.

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, as stated in a court-martial, will be 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 particular case merited clemency.

The Applicant’s service record indicates he entered military service at age 1 9 on a four-year Open E nlistment contract with no specified guarante e of training. The Applicant’s enlistment record further documents entry into the service with a waiver for pre-service drug use (marijuana) and for an adjudicated, serious law offense . He acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 19921217 . The Applicant honorably completed two enlistment periods prior to the enlistment period in question that contain s the misconduct of record. The highest rank achieved by the Applicant during his enlistment was E-6/Staff Sergeant . The Applicant’s record of service included three 6105 retention- counseling warning s and , during his current enlistment period, one S pecial C ourt - M artial for violation o f the Uniform Code of Military Justice (UCMJ): Article 134 ( 2 s pecifications , as documented above). A qualified legal defense counsel represented the Applicant throughout the trial by Special Court-Martial. Given the facts of the case, the trial judge awarded the Applicant a Bad Conduct Discharge. The case was submitted for review to the U.S. Navy–Marine Corps Court of Criminal Appeals; 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 effect ed on 11 May 2005 .

Nondecisional I ssue : 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 access to VA b enefits. There is no requirement, or law, that grants re-characterization solely on the issue of obtaining veterans health and educational benefits. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities. 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 wh ich the NDRB can grant relief.

Decisional Issue: (Clemency/Equity) CLEMENCY NOT WARRANTED . The Applicant s tates that i t has been 6 years since the court - martial conviction and contends that the d ischarge was overly harsh for a common social error and has prevented him from being able to reenter society effectively. The Applicant contends that he has to relive the punishment every day and seeks an upgrade in the form of clemency. 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 n overall period of service of approximately 10 years in which time he was subject to three retention counseling warnings and one trial by Special Court - Martial. The Applicant completed his first two enlistment periods with an Honorable characterization of those periods of service, however, each period of enlistment is an independent obligation, and characterization of service is determined for that specific period. The Applicant’s documented conduct during his current period of enlistment includes withdrawing from Drill Instructor School on his own request, hazing a Marine by ritualistic physical abuse, and a punitive conviction for drunk and disorderly conduct and engaging in a sexual relation , while aboard a military installation, with a women no t his wife who was the wife of another Marine . Due to the Applicant ’ s discrediting conduct as a Staff Noncommissioned Officer , and the detrimental effect to the good order and discipline of the service, the Command referred th ose charges for trial by Special Court - Martial.

Despite a servicemember’s prior record of service, certain serious offenses warrant separation from the service in order to maintain good order and discipline. By virtue of his rank and time in service, the Applicant was vested with special trust and confidence from the service, and his command, as a leader, trainer, and mentor of noncommissioned officers and non-rate Marines . The Applicant violated these trusts and responsibilities with drunken and disorderly conduct and inappropriate sexual relations with another Marine ’ s wife. Given the rank, training, and time in service, the Applicant was fully aware of the wrongfulness of his conduct and that the service must hold him accountable in order to assure the integrity and discipline of the system. The drunken and disorderly conduct of a SNCO, coupled with wrongful sexual relations, is not minor misconduct and warrants punitive disciplinary action, especially for those charged with ensuring the leadership and training of our younger Marines . 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. Accordingly, clemency is denied.

Summary : After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, the verbatim transcript record of trial by Special Court-Martial, and the discharge process, the NDRB determined that clemency is not warranted. Therefore, the awarded characterization of service shall remain BAD CONDUCT DISCHARGE, and the narrative reason for separation shall remain COURT-MARTIAL. 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, 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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