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USMC | DRB | 2010_Marine | MD1002084
Original file (MD1002084.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20100823
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)       19970113 - 19971026     Active:   19971027 - 20030404 HON

Period of Service Under Review:
Date of Current Enlistment: 20030405     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20050810      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 06 D a y ( s )
Education Level:        AFQT: 63
MOS: 7051 8152 8551
Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (3) Pistol (2) (2) (Bahrain) CoC (Individual Award) (3) LoA (3) MM

Period of CONF : Pre-trial: 20030930-20031203, 63 days

NJP:     SCM:              Retention Warning Counseling :    CC:

SPCM:
- 200312 03 :       Art icle (Unauthorized absence 20030909-20030930, 21 days)
         Article 90 (Disobey Superior Commissioned Officer)
         Sentence :
         CA: Sentence approved and, except for that part of the sentence extending to a bad-conduct discharge, will be executed.

NDRB Documentary Review Conducted (date):        20060512
NDRB Documentary Review Docket Number:   MD06-00758
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.

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 :        


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

Applicant’s Issues

 1.       The Applicant contends his discharge is inequitable , because the punishment was too harsh .
2.       The Applicant seeks clemency due to significant personal stressors in his life that led to his misconduct.
3.       The Applicant believes his post-service conduct is worthy of consideration.

Decision

Date : 20 1 1 1026            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 Board 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 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. T he Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included for of the UCMJ: Article 86 ( Unauthorized Absence , 20030909 - 20030930, 21 days) and Article 90 (Disobeying a Superior Commissioned Officer ). On 3 Dec 2003, the Applicant was found guilty at SPCM for violation of UCMJ Articles 86 and 90. The Applicant was approved for appellate leave following his SPCM and subsequently separated from the Marine Corps on 10 Aug 2005 with a Bad Conduct characterization of service .

: (Decisional) ( ) . The Applicant contends that his offenses warranted punishment , however, he believes the sentence was too severe . In reviewing discharges adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency. After reviewing the facts and circumstances unique to this case, the NDRB determined that partial clemency was warranted as it believed that the punishment for the offenses was excessive . However, an upgrade to Honorable as requested by the Applicant is not considered appropriate given the fact that misconduct did exist and the misconduct was intentional. Partial clemency warranted.

: (Decisional) ( ) . The Applicant seeks clemency due to significant personal stressors in his life that led to his misconduct. The Applicant contends stress and emotional problems resulting from his failing marriage , in conjunction with his mother’s illness , led to the misconduct for which he was separated. While t he Board understands that many service members experience marital and family problems during their enlistment , most service members still manage to serve honorably. Furthermore, a lthough t he Board recognizes some service members experience marital and f amily problems that are more severe than others , it does not view a claim of marital and f amily problems to be a mitigating factor or a sufficient reason for misconduct. T he Board determined that the Applicant bears responsibility for his actions and should be held accountable for his misconduct. No clemency warranted.

: (Decisional) ( ) . The Applicant contends that his post-service achievements warrant consideration for his discharge to be upgraded to Honorable. The NDRB is authorized to consider post-service factors in the re-characterization of a discharge. However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on good conduct or achievements in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question. Along with his DD Form 293, the Applicant submitted credible documentary evidence of his post - service conduct , to include evidence of a verifiable continuous employment record, certification of no criminal involvement with civilian authorities, character witness statements, documentation of community service, and a copy of transcripts reflecting

college attendance. Based on the Applicant’s post-service conduct , in conjunction with his in-service performance and conduct prior to the incident that led to his discharge, the Board concluded that the Applicant’s misconduct was an aberration and not indicative of his overall character. Partial clemency warranted . Full clemency to Honorable was not granted due to the seriousness of the misconduct.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain COURT-MARTIAL.

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 .


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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