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USMC | DRB | 2010_Marine | MD1002216

Original file (MD1002216.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20100909

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)       19990920 - 20000626     Active:

Period of Service Under Review:
Date of Current Enlistment: 20000627     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20040902      H ighest Rank:
Length of Service : Y ea rs M on ths 07 D a ys
Education Level:        AFQT: 38
MOS: 0621
Proficiency/Conduct M arks (# of occasions): 3.5 (7) / 3.1 (8)    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle SS , Pistol MM , NDSM

NJP: 2

- 20020410 :       Art icle 86 (Absence without leave, UA, 20020402 - 20020403)
         Article 92 (Failure to obey order or regulation, 2 spec ifications)
         Speculation 1: Allowing a fellow Marine borrow his POV on a suspended license
         Speculation 2: Wrongfully not reporting to the Duty NCO on the designated time
         Article 107 (False official statement, lied to SNCO s tating he would not go to Virginia for the Easter 96 , and then did so )
         Sentence : RIR , FOP , RESTR Suspended: ½ FOP for 1 month

- 20020521 :      Article 92 (Failure to obey order or regulation, late for restriction muster , 2 specifications )
         Article 108 (Military property of the United States - loss, damage, destruction, or wrongful disposition, through neglect : lost CVC gloves, nomex coveralls, and baklava, of a value of about $220.89 )
         Awarded : RIR , FOP , RESTR Susp ended: FOP

SCM: 1

- 20020724 :       Art icle 86 (Absence without leave, 6 specifications )
         Specification 1: Unauthorized absence from appointed place of duty , 0700 - 0715, 20020705
         Specification 2: Unauthorized absence from appointed place of duty , 0800 - 0920, 20020705
         Specification 3: Unauthorized absence from appointed place of duty , 1100 - 1120, 20020705
         Specification 4: Unauthorized absence from appointed place of duty , 0700 - 0735, 20020707
         Specification 5: Unauthorized absence from appointed place of duty , 1800 - 1930, 20020714
         Specification 6: Unauthorized absence from appointed place of duty , 0645 - 0715, 20020722
         Article 92 (Failure to obey order or regulation, failed to report to the company office as directed )
         Sentence : FOP , CONF 30 days (20020724 - 20020817, 24 days)

SPCM:

- 20030828:      Article 86 (Absence without leave - absented himself from his unit, without authority , from 20020917 to 20030709 for a period of 292 days - absence terminated by civilian law enforcement apprehension )
        Sentence Adjudged : To receive a Bad Conduct Discharge and to be confined for a period of 6 months.
         Convening Authority Action : The sentence is approved and, except for the BCD, will be executed, but the execution of that part of the sentence extending to all confinement in excess of ninety (90) days is suspended for a period of 12 months from the date of the convening authorit y action. Time served in confinement: 20030709 - 200300711 [IHCA], 20030712 - 20030827 [pre-trial confinement], and 20030828 - 200309 20 [confinement] - 72 days total time served.

CC: NONE         Retention Warning Counseling : NONE

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 503, Equity .

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

Applicant’s Issues

Decisional Issues : The Applicant alleges that racial problems in his unit contributed to his misconduct. Additionally, t he Applicant contends that his youth and immaturity were contributing and mitigating factors in his misconduct .

Decision

Date: 20 1 2 0104 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, the Applicant ’ s case was considered under the pertinent standards of equity to determine if any factors in this par ticular case merited clemency.

The Applicant entered military service at age 18 on a four year enlistment with a guaranteed contract of Communications/Electronics Option. The Applicant’s enlistment record reflects entry into military service without any waivers to enlistment and induction standards. The Applicant’s record of service documents two nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 86 , Article 92, and Article 107 ( NJP dated 20020410) and Article 92 and Article 108 (NJP dated 20020521) . Furthermore, the Applicant’s service record documents a S ummary C ourt- M artial (SCM) for violations of the UCMJ: Article 86 ( six specifications ) and Article 92 ( SCM dated 20020724). As a result of the S ummary C ourt -M artial, the Applicant was awarded 30 days confinement in the base brig. Moreover, the Applicant’s service record reflects a punitive conviction a nd punishment as adjudged by a S pecial C ourt -M artial on 28 August 2003 . The Applicant was subject to trial by S pecial C ourt -M artial for violation of Art icle 86 (Absence without leave); the Applicant absented himself from his unit on 20020917, without authority, and did remain so absent until being apprehended by civilian law enforcement authorities on 20030709, a total absence of 292 days. After 3 days in the hands of civilian authorities, t he Applicant was returned to military custody and was placed in pre-trial confinement , pending trial by S pecial C ourt -M artial.

A qualified legal defense counsel represented the Applicant throughout the trial by Special Court-Martial process. In accordance with a signed pre-trial agreement, the Applicant pled guilty to the specified charge before a judge alone. Given the facts of the case, the j udge found the Applicant guilty and awarded him confinement for a period of 6 months and to be discharged with a Bad Conduct Discharge . The Convening Authority agreed with the adjudged sentence and ordered it executed, but the execution of that part of the sentence extending to all confinement in excess of ninety (90) days was suspended for a period of 12 months in accordance with the pre-tr i al agreement. Th e case was submitted for review to the U.S. Navy–Marine Corps Court of Criminal Appeals without assignments of error; 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 effected on 02 September 2004 .

Decisional Issue: (Clemency/Equity) CLEMENCY NOT WARRANTED. The Applicant alleges that racial problems in his unit contributed to his misconduct. Additionally, the Applicant contends that his youth and immaturity were contributing and mitigating factors in his misconduct. The Applicant’s service record documents a period of service of approximately 2 years and 3 months of active service prior to absenting himself from his unit. During this time, the Applicant was subject to two nonjudicial punishments and a S ummary C ourt -M artial for minor misconduct. The Applicant then absented himself, without authority , from his unit for 292 days, returning to military authority only due to having been apprehended by civilian law enforcement authorities . The Applicant’s misconduct documents a clear pattern of misconduct related to unauthorized absence and a general failure to conform to military rules and regulations - with a demonstrated intent to remain absent and avoid his military duties. Due to the Applicant’s refusal to conform to the expected conduct of a United States Marine after multiple administrative punishment s, coupled with the need to maintain good order and discipline of the service, the Command referred the final period of unauthorized absence to trial by Special Court - Martial. T he Applicant contends his disciplinary problems were the result of stress caused by racial problems within his organization. A llegations of racial discrimination or harassment should have be en made to an equal opportunity representative, the Commanding Officer, or an Inspector General ’ s Office for investigation and adjudication. There is no evidence in the record, nor did the Applicant provide any documentation, to indicate he attempted to utilize the numerous agencies or the chain of command to address this contention. Statements alone, without sufficient documentary evidence, are not enough for the NDRB to form a basis of relief.

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 of the nature specified. 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 unauthorized absences and general contempt for good order and discipline is not minor misconduct and sup ports 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 and supporting documentation, did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded. Given the short period of the Applicant’s service, coupled with the repetitive and extensive nature of the misconduct, terminated only by apprehension, the NDRB agreed unanimously that the punishment, as awarded, was warranted, was equitable, was, and remains, a proper reflection of the Applicant’s service and reason for discharge; as such, relief in the form o f clemency is not warranted.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, the V erbatim R ecord of T rial by Special Court-Martial, and the discharge process, the NDRB determined that clemency was not warranted. Therefore, the awarded characterization of service shall BAD CONDUCT DISCHARGE 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 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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USMC | DRB | 2010_Marine | MD1002216

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