Search Decisions

Decision Text

USMC | DRB | 2010_Marine | MD1002161
Original file (MD1002161.rtf) Auto-classification: Denied
ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20100907
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)       19950222 - 19960129     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19960130     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19981001      H ighest Rank:
Length of Service : Y ea rs M on ths 02 D a ys
Education Level:        AFQT: NFIR
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:
Awards and Decorations ( per DD 214):      Rifle Pistol SSDR

Periods of C ONF :

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

SPCM: 1
- 19980311 :       Article (Absence without leave - Absented himself from his unit, without proper authority, on 19971115 and remained so absent until 199 80115, wherein his absence was terminated through surrender to military authority ; total days absent - 60 days)
         Sentence Adjudged: Bad Conduct Discharge
         Convening Authority Action: The sentence is approved, and except for the Bad Conduct Discharge, is ordered executed . As required, the case if forwarded for appellate review of the Bad Conduct Discharge.

Administrative Corrections to the Applicant’s DD 214

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

          “ COURT-MARTIAL ”
        
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 P1900.16E), 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 503, Equity .


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

Applicant’s Issues

 Decisional Issues: The Applicant contends his discharge is inequitable; it was based on an isolated incident with over 30 months of honorable service and his misconduct (absence) was mitigated by medical problems that were not allowed to properly recover. The Applicant contends that his post-service efforts are worthy of consideration.

Decision

Date: 20 1 20112   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, are presumed by the NDRB, to be established facts. As such, th e Applicant’ s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. Matters of propriety are addressed through the Courts of Appeal as a function o f the Applicant’s legal rights.

The Applicant entered military service at age 1 8 on a four year enlistment with a guaranteed contract of Infantry Option. The Applicant’s enlistment record reflects his entry into the military service with a waiver to enlistment and induction standards for misdemeanor 4th degree assault . The Applicant satisfactorily completed one year and nine months of service before absenting himself from his unit ; the remainder of his enlistment period was either in an unauthorized absence status, pending trial by court - martial, or on appellate leave, pending review of his punitive discharge. The Applicant’s record of service does not document any nonjudicial punishment s for violation s of the Uniform Code of Military Justice (UCMJ) or any retention-counseling warnings. However, the service record does contain a S pecial C ourt- M artial (SPCM) for violation of the UCMJ: Article 86 (Absence without leave - Absented himself from his unit, without proper authority, on 199 7115 and remained so absent until 199 80115, wherein his absence was terminated through his surrender to military authority ; total days absent - 60 days). During this period of unauthorized absence, the Applicant was dropped from his unit ’s rol l s after 30 days of continued absence and was declared a Deserter. A qualified legal defense counsel represented the Applicant throughout his trial by Special Court-Martial. In accordance with a Pre-trial Agreement (PTA), the Applicant pled guilty to the charge as specified before a trial by Military Judge alone. At the trial, the Applicant requested to be discharged with a Bad Conduct Discharge ; he stipulat ed - in writing - that he had been fully advised of the possible adverse consequences in the civilian community and that he would be deprived of virtually all v eterans benefits. Given the facts of the case and the Applicant ’ s testimony , the Military Judge found the Applicant guilty of the charge , as specified , and adjudged a Bad Conduct D ischarge . The case was submitted for review to the U.S. Navy–Marine Corps Court of Criminal Appeals without assignment of error; the Applicant submitted a motion - in writing - against advice of his appellant counsel, to withdraw his case from review. The motion to withdraw was approved, and the case returned to the Navy Marine Corps Appellate Leave Activity to order the Bad Conduct Discharge executed. Accordingly, the Ap plicant was discharge d on 01 October 1998.

Decisional Issue: (Clemency/Equity) PARTIAL CLEMENCY WARRANTED. The Applicant contends his discharge was based on an isolated incident with over 30 months of honorable service and his misconduct was mitigated by medical problems that were not allowed to properly recover. The Applicant also contends that his post-service efforts are worthy of consideration. 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 period of service of approximately 1 year and 9 months of active service prior to absenting himself from his unit. The Applicant then absented himself, without authority , from his unit for 60 days, returning to military authority after surrendering himself. The Applicant was referred to a S pecial C ourt- M artial, which adjudged a punitive Bad Conduct Discharge. The Applicant’s service record, along with his testimony at trial, clearly document ed the commission of a serious offense ( u nauthorized absence in excess of 30 days) . Besides the Applicant’s statement on the DD Form 293, he provided college transcripts, technical certifications, letters of character reference, a criminal background check, and certificates of training with his local sheriff’s office and police department. The Applicant should be aware submission of these items alone does not guarantee clemency , as each discharge is reviewed by the NDRB on a case-by-case basis.

After a thorough review of the Applicant’s record (4.4/4.4 average Proficiency and Conduct markings before the unauthorized absence) , the unique issue submitted in support of this case , the standards of discipline, post-service accomplishments, and time passed since the BCD, the NDRB determined that some degree of clemency was warranted. However, the NDRB considered the Applicant’s request for a change to a General (Under Honorable Conditions) discharge to be inappropriate due to the nature of the in-service conduct. By a vote 5-0 , the NDRB voted to award clemency based on equitable grounds ; the characterization of service at discharge shall change from Bad Conduct Discharge to Under Othe r Than Honorable Conditions. Partial clemency warranted.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, the verbatim record of trial by Special Court-Martial, and the discharge process, the NDRB determined that some form of clemency was warranted. Therefore, the awarded characterization of service shall UNDER OTHER THAN HONORABLE CONDITIONS, but 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

Similar Decisions

  • USMC | DRB | 2006_Marine | MD0600502

    Original file (MD0600502.rtf) Auto-classification: Denied

    After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. PART I - APPLICANT’S ISSUES AND DOCUMENTATION Applicant chose to make a rebuttal.010606: Applicant’s rebuttal page 11 entry.010703: NAVDRUGLAB, SAN DIEGO, CA, reported Applicant’s urine sample, received 010629, tested positive for THC.010901: Counseling: Advised of deficiencies...

  • NAVY | DRB | 2010_Navy | ND1002144

    Original file (ND1002144.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive:USNR (DEP)19940415 - 19940531Active: Period of Service Under Review: Date of Current Enlistment: 19940601Age at Enlistment:Period of Enlistment: YearsExtensionDate of Discharge:19971219Highest Rank/Rate:AALength of Service: Years Months19 DaysEducation Level:AFQT: 65EvaluationMarks:Performance:3.8 (1)Behavior:3.8 (1)OTA: 3.6 Awards and Decorations (per DD 214):NDSMPeriods of...

  • USMC | DRB | 2011_Marine | MD1100684

    Original file (MD1100684.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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: Other Documentation: Additional Statements:From Applicant: From/To Representation:From/ToCongress member: Pertinent Regulation/Law A. Paragraph 1105, DISCHARGE...

  • USMC | DRB | 2011_Marine | MD1100053

    Original file (MD1100053.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive:USMCR (DEP)NONEActive: Period of Service Under Review: Date of Current Enlistment: 20070212Age at Enlistment: Period of Enlistment: Years MonthsDate of Discharge:20090720Highest Rank:Length of Service: Years Months09 DaysEducation Level: AFQT:68MOS: 1341Proficiency/Conduct Marks (# of occasions):NFIR / NFIRFitness Reports: Awards and Decorations (per DD 214):Rifle SS,...

  • USMC | DRB | 2010_Marine | MD1002323

    Original file (MD1002323.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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: Other Documentation: Additional Statements:From Applicant: From/To Representation:From/ToCongress member: Pertinent Regulation/Law A. Paragraph 1105, DISCHARGE...

  • USMC | DRB | 2011_Marine | MD1100243

    Original file (MD1100243.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive:USMCR (DEP)19960110 - 19960630Active: Period of Service Under Review: Date of Current Enlistment: 19960701Age at Enlistment: Period of Enlistment: Years MonthsDate of Discharge:19971118Highest Rank:Length of Service: Year(s)Month(s)05 Day(s)Education Level: AFQT:54MOS: 0300Proficiency/Conduct Marks (# of occasions):/Fitness Reports: Awards and Decorations (per DD 214):Rifle...

  • NAVY | DRB | 2006_Navy | ND0600792

    Original file (ND0600792.rtf) Auto-classification: Denied

    Decisional Issues None Documentation In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:Applicant’s DD Form 214 (Service 2) PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Inactive: USNR (DEP) 19911106 – 19920824 COGActive: None Period of Service Under Review :Date of Enlistment: 19920825 Date of Discharge: 19951128 Length of Service (years, months, days):03 03 04(Does...

  • NAVY | DRB | 2011_Navy | ND1100708

    Original file (ND1100708.rtf) Auto-classification: Denied

    Given the facts of the case during the second Special Court-Martial, the Judgefound the Applicant guilty of the charge as specified and adjudged confinement for a period of 6 months and to be discharged from the Naval Service with a Bad Conduct Discharge. Regulations limit the NDRB’s review solely to a determination of clemency based on matters regarding the equity of a discharge when considering a change to a punitive Bad Conduct Discharge. ” Additional Reviews : After a document review...

  • USMC | DRB | 2010_Marine | MD1002106

    Original file (MD1002106.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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: Other Documentation: Additional Statements:From Applicant: From/To Representation:From/ToCongress member: Pertinent Regulation/Law A. Paragraph 1105, DISCHARGE...

  • USMC | DRB | 2010_Marine | MD1002320

    Original file (MD1002320.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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: Other Documentation: Additional Statements:From Applicant: From/To Representation:From/ToCongress member: Pertinent Regulation/Law A. Paragraph 1105, DISCHARGE...