Upgrade.Vet

USMC | DRB | 2010_Marine | MD1002044

Original file (MD1002044.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20100810

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)       19881128 - 19891113     Active:

Period of Service Under Review:
Date of Current Enlistment: 19891114     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19970331      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 01 D a y ( s )
Education Level:        AFQT: 38
MOS: 2311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:
Awards and Decorations ( per DD 214):      Rifle

Periods of UA : 19930813-19931117 ( 95 days )

NJP:
- 19910927 :       Article (Violate a lawful order, wearing an earring in his ear)
         Awarded : FOP Susp ended:

- 19920305 :       Article (Wrongful use, possession, etc of a controlled substance - cocaine and marijuana )
         Awarded : Susp ended:
SPCM:
- 19921113 :       Art icle (Unauthorized absence, 2 specifications )
                  Specification 1: Failed to go at time prescribed to appointed place of duty, to wit: Ammunition Supply Point, Building SH-30
                  Specification 2: Failed to g o to appointed place of duty, to wit: Assistant Duty Noncommissioned Officer
         Article 92 (Violate a lawful general order, to wit: using a base decal and having vehicle on base while driving privileges were suspended)
         Article 108 ( L oss, damage, destruction to government property - did l ose 3 Armed Forces Identification Cards)
         Article 112a (Wrongful use, possession, etc of a controlled substance - possession of marijuana)
         Article 121 (Larceny, 2 specifications )
                  Specification 1: Did s teal two video cassette recorders, of a total value of about $520.00
                  Specification 2: Did s teal $75.00, the property of Lejeune Pawn
         Article 130: Unlawful entry, wrongful appropriation, therein
         Article 134: Break restriction
         Sentence : , , , CONF 4 months Pre-trial C onf inement : 19920420-19920426 ( 7 days ) , 19920904-19921112 ( 70 days) , Post -trial C onfinement : 19921113-19921205 ( 23 days )
         C onvening Authority Action : Sentence is approved and, except for the B ad C onduct D ischarge, will be executed, but that part of the sentence extending to confinement in excess of 120 days is suspended for a period of 12 months from the date of release from confinement, at which time, unless sooner vacated , the suspended part of the sentence shall be remitted without further action.

G CM:
- 19940414 :       Article 108 ( Military property: L oss, damage, destruction, disposition , did willfully d ispose of six (6) explosive hand grenades , without proper authority )
         Article 121 ( Larceny , did s teal one U.S. Armed Forces Identification Card)
         Article 123 (Forgery, 8 specifications )
         Specification 1: With intent to defraud, falsely make the signature of LCpl T_, written to First Citizens Bank Account Signature Card, dtd 19930430.
         Specification 2: With intent to defraud, falsely make the signature of LCpl T_, written to First Citizens Bank check, dtd 19930430 in the amount of $160.14.
         Specification 3: With intent to defraud, falsely make the signature of LCpl T_, to a certain check in the following words and figures , First Citizens Bank check, dtd 19930501 in the amount of $200.00.
         Specification 4: With intent to defraud, falsely make the signature of LCpl T_, to a certain check in the following words and figures, First Citizens Bank check, dtd 19930501 in the amount of $249.95.
         Specification 5: With intent to defraud, falsely make the signature of LCpl T_, to a certain check in the following words and figures, First Citizens Bank check, dtd 19930501 in the amount of $374.92.
         Specification 6: With intent to defraud, falsely make the signature of LCpl T_, to a certain check in the following words and figures, First Citizens Bank check, dtd 19930501 in the amount of $85.96.
         Specification 7: With intent to defraud, falsely make the signature of LCpl T_, to a certain check in the following words and figures, First Citizens Bank check, dtd 19930502 in the amount of $200.00.
         Specification 8: With intent to defraud, falsely make the signature of LCpl T_, to a certain check in the following words and figures, East West Trading Company, check, dtd 19930501 in the amount of $100.00.
         Article 123a (Making, drawing, or uttering check, draft, or order without sufficient funds, 2 specification s)
         Specification 1: With intent to defraud, did utter to MWR , certain checks drawn upon the First Citizen Bank in the following word and figures: First Citizens Bank check dtd 19930430, in the amount of $160.00, First Citizens Bank check dtd 19930501 in the amount $200.00, First Citizens Bank check dtd 19930501, in the amount of $249.95, First Citizens Bank check dtd 19930501, in the amount of $ 374.92 , First Citizens Bank check dtd 1993050 1 , in the amount $ 85.96, First Citizens Bank check dtd 19930502, in the amount of $200.00.
         Specification 2 : With intent to defraud, wrongfully make and utter to East West Trading Company a c ertain check drawn upon the First Citizen Bank in the following word and figures, to wit: First Citizens Bank check dtd 19930501, in the amount of $100.00.
         Article 134 (General article, 2 specifications )
         Specification 1: Wrongfully and falsely, tamper with and alter by substituting his photograph , for the photograph of the original military I.D. Card.
         Specification 2: Wrongfully use d, with the intent to defraud and deceive, U.S. Armed Forces
         Sentence : Dishonorable D ischarge , , , C onfinement for 6 years Pre-trial C onfinement : 19931113-19940413 ( 153 d ays) , Post-trial Confinement : 19940414-19960928 (899 days)
         Final C onvening Authority Action (19 July 1996) : Only so much of the sentence as provides for a D ishonorable D ischarge, four years confinement, and forfeiture of all pay and allowances is approved, and except for the D ishonorable D ischarge, will be executed.

SCM:     CC:

Retention Warning Counseling :
- 19910924:       For your lack of financial responsibility. You need to e nsure you pay all just debts.

- 19911022 :       For assignment to weight control program on 19910926.

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

Nondecisional issues: The Applicant seeks an upgrade in the characterization of his service at discharge in order to facilitate access to disability benefits from the Department of Veterans Affairs.

Decisional issues : The Applicant seeks clemency in the form of a change in the characterization of his service at discharge, contending that he was young and immature at the time of his misconduct and h as since matured and straightened out his life.

Decision

Date: 20 1 1 1208         Location: Washington D.C .        R epresentation :

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 Bad Conduct Discharge as adjudged by a S pecial C ourt- M artial , 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. 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 record of service documents his entr y into m ilitary service at age 18 on a four-year enlistment contract as an Ammunition Technician . The Applicant’s enlistment record further reflects his acceptance into military service with a waiver to enlistment and induction standards for his admitted pre-service illegal drug use (marijuana). As a function of his enlistment contract with waiver , the Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning the Illegal Use of Drugs - in writing - on 28 November 1988 . The Applicant completed approximately two and one half years of service prior to his confinement while awaiting adjudication at trial by S pecial C ourt -M artial. The highest rank achieved by the Applicant during his enlistment was E- 3 / Lance Corporal .

The Applicant’s record of service contains two retention-counseling warnings and two nonjudicial punishments for the following o f the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation , uniform violation ) and Article 112(a) (Wrongful use, possession, etc . of a controlled substance , to wit cocaine and marijuana). Confirmation of illegal drug use in service required , at a minimum, mandatory processing for administrative separation due to Misconduct - Drug Abuse in accordance with Paragraph 6210.5 of the Marine Corps Separation and Retirement Manual. However, in April 1992, the Applicant was placed in pre- trial confinement , pending referral of charges to trial by Special Court - Mart i al. On 13 November 1992, t he Applicant was convicted at a trial by S pecial C ourt -M artial for the fo llowing violations of the UCMJ:
•         Article 86 ( Absence without leave , 2 specifications of failure to go to appointed place of duty )
•         Article 92 (Failure to obey order or regulation s )
•         Article 108 ( L oss, damage, destruction of government property through neglect)
•         Article 112a (Wrongful use, possession, etc . of a controlled substance , marijuana )
•         Article 121 (Larceny , 2 spe cifications)
•         Article 130 (Housebreaking) and
•         Article 134 (General A rticle, Break ing Restriction) .

A qualified legal defense counsel represented the Applicant throughout the trial by Special Court-Martial proceedings . The Applicant was tried in accordance with his signed pre-tr ial agreement in which he agreed to ple a d guilty to the specific charges and specifications, as agreed ; in return, the C onvening A uthority agreed to a limitation regarding confinement. The Applicant orally requested trial by military judge alone. Given the facts of the case, the military trial judge awarded the Applicant a Bad Conduct Discharge , reduction in grade to E-1 , a forfeiture of pay for 4 months ($500.00/month) , and to be confine d for a period of 4 months . The Convening Authority reviewed the results of the trial and order the adjudged sentence to be executed ex cept that part of the sentence pertaining to the Bad Conduct D ischarge , which required Appellate review in accordance with Article 71 of the UCMJ. The Applicant’s petition for clemency was reviewed by the Navy and Marine Corps Clemency and Parole B oard on 21 April 1994 and was denied. The case was submitted for review to the U.S. Navy - Marine Corps Court of Criminal Appeals without any specific assignments of error; it was reviewed and the findings were affirmed on 07 February 1995 . Subsequently, the Navy Marine Corps Appellate Leave Activity ordered the B ad Conduct Discharge executed.

Non-decisional Issue : The Applicant seeks an upgrade in the characterization of his service at discharge in order to facilitate access to disability benefits from the Department of Veterans Affairs . There is no requirement, or law, that grants re-characterization solely on the issue of facilitating access to VA benefits. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities or employment opportunities. Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge. As such, this issue does not serve to provide a foundation upon wh ich the NDRB can grant relief.

Decisional Issue: ( BCD Discharge - Clemency/Equity) RELIEF NOT WARRANTED. The Applicant seeks clemency in the form of a change in the characterization of his service at discharge, contending that he was young and immature at the time of his misconduct and his since matured and straightened out his life. 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 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 deliberate and repetitive misconduct. Moreover, despite a servicemember’s prior record of service, certain serious offenses, warrant separation from the Naval Service to maintain proper order and discipline. The pattern of documented illegal drug use, larceny, 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, did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge characterization was awarded. As such, the NDRB determined that the characterization of service at discharge was appropriate, was equitable, and was consistent with the characterization of discharge given others in similar circumstances. The NDRB determined that clemency would be inappropriate; accordingly, relief is denied.

NDRB Issue : In reviewing the Applicant’s petition for relief, the NDRB reviewed the Applicant’s entire service record in conjunction with the verbatim record of trial by courts-martial. The Applicant’s service record documents that he completed the adjudicated period of confinement as awarded by the S pecial C ourt -M artial sentence. Upon release, and while pending discharge processing, the Applicant was alleged to have been involved in a conspiracy to steal hand grenades from the base ammunition supply point a long with numerous other violations of the UCMJ. The Applicant absented himself from his unit, without authority, on 13 August 1993 and did remain so absent until apprehended by Local Law Enforcement A uthorities on 1 3 November 1993 - a period of unauthorized absence of 9 1 days. During this period, the Applicant was declared a deserter. Upon return to military custody on 17 November, the Applicant was ordered in to pre-trial confinement, pending an A rticle 32 investigation into the alleged charges in preparation for trial by General Court - Martial. The Article 32 hearing was completed on 31 January 1994 and charges were referred for trial by General Court - Martial on 10 February 1994. Military coun se l represented the Applicant throughout the General Court - Martial process. The Applicant was convicted of the charges on 14 April 1994 by a panel of military members. He was adjudged a Dishonorable Discharge from the military service, 6 years confinement, and forfeiture of all pay and allowances. The Convening Authority took action on the results of the trial on 16 May 1995, ordering the sentence executed with the exception of the Dishonorable Discharge, which required appellate review before being ordered executed . The General Court-Martial action was submitted for review to the Navy-Marine Corps Court of Criminal Appeals without assignment of error; it was affirmed and ordered executed on 22 September 1995. The Applicant appealed this decision to the United States Court of Appeals of the Armed Forces (CAAF) on 15 March 1996; the Court denied the petition for a grant of review on 11 April 1996. On 14 May 1996, the Applicant submitted a request for clemency to the Convening Authority; on 19 August, the Convening Authority acted on the request for clemency and reduced the sentence of

confinement for six years to a period of four years. On 28 September 199 6 , the Applicant was released from confinement and was ordered to involuntary appellate leave - for an indefinite period - awaiting final appellate review of the punitive Dishonora ble Discharge.

The r ecord of trial by General Court - Martial documents that on 14 August 1996, the denial of petition for review by the CAAF was forwarded to the Convening Authority for delivery to the Applicant. With this notification, the Appellate review process was complete and a final court - martial order was direct ed , discharging the Applicant from the military service with a Dishonorable Discharge. Having conducted a detailed review of both the records of trial by Special and by General Court - Martial and the Applicant’s official military service record, no final discharge action (Dishonorable Discharge DD Form 214) related to the General Court - Martial was found; the only discharge action of record is the Bad Conduct Discharge issued effective 31 March 1997. The Dishonorable Discharge, as adjudged by a General Court - Martial, supersedes the Bad Conduct Discharge awarded at trial by Special Court - Martial. As such, the Applicant should have received a new DD Form 214 reflecting a characterization of service of “DISHONORABLE DISCHARGE” and a narrative reason for separation of “ COURT-MARTIAL. ”

The NDRB has no authority to change or amend a punitive Dishonorable Discharge as adjudged by a General Court - Martial. The NDRB is strictly limited to the review of a punitive Bad Conduct Discharge or administrative discharges u nder o ther t han h onorable c onditions or better. However, since no final Dishonorable Discharge action was found in the official military service record s , the NDRB accepted the Applicant’s petition for review of the Bad Conduct Discharge.

Summary : After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and v erbatim record of tri a l by Special Court - Martial, the NDRB determined that the discharge was proper and equitable and that clemency was not warranted. Therefore, the awarded characterization of service shall DISCHARGE and the narrative reason for separation shall remain COURT - MARTIAL. The v erbatim r ecords of both the t rial by Special Court - Martial and the t rial by General Court - Martial are being returned to the Navy and Marine Corps Appellate Review Activity to ensure all appropriate legal requirements have been complied with and that all necessary actions have been completed.

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 | MD1002044

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