Upgrade.Vet

USMC | DRB | 2010_Marine | MD1002230

Original file (MD1002230.rtf) Auto-classification: Denied

ex-Pvt, 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: UNCHARACTERIZED OR GENERAL (UNDER HONORABLE CONDITIONS)
         Narrative Reason change to:

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       20031219 - 20040801     Active:

Period of Service Under Review:
Date of Current Enlistment: 20040802     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070125      H ighest Rank:
Length of Service : Y ea rs M on ths 24 D a ys
Education Level:        AFQT: 59
MOS: 0300
Proficiency/Conduct M arks (# of occasions): 1.7 / 1.0    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle SS GWOTSM NDSM

Period of Time Lost : Unauthorized Absence s: 20050105 - 20050203 (29 days ) ; 20050205 - 20050813 (188 days); 20050822 - 20051010 (49 days); In Hands Civilian Authorities 20051011 - 20051012 (2 days); Pre-Trial Confinement 20051013 - 20051127 (45 days)

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

SPCM: 1

- 20051128 :       Art icle 86 (Absence without leave, 2 specifications )
         Specification 1: U nauthorized A bsence , 20050205 - 20050813 ( 188 days ), terminated by surrender
         Specification 2: Unauthorized Absence , 20050822 - 20051011 ( 49 days ), terminated by apprehension
         Sentence : BCD, RIR to E-1, C onfinement for 4 8 days (20051013 - 20051127, 45 days)

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

Nondecisional Issues: The Applicant seeks clemency in the form of an upgrade in the characterization of his service at discharge in order to facilitate employment opportunities and access to Department of Veterans Affairs (VA) benefits .

Decisional Issues : The Applicant did not identify any decisional issues related to the equity of his discharge for consideration of the B oard; however, by submission of his application, the NDRB considered all factors of the discharge to determine if clemency is warranted.

Decision

Date: 20 1 2010 4 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 standard 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 18 on a five -year enlistment contract under the Marine Corps Security Forces/ Infantry T raining option . The Applicant’s enlistment record reflects his entry into military service with out any waivers to enlistment and induction standards . The highest rank achieved by the Applicant during his enlistment was E- 2 /Private First Class . The Applicant’s record of service includes a punitive conviction and punishment as adjudged by a S pecial C ourt -M artial on 28 November 2005 for violation of Article 86 (Absence without leave, 200 50205 - 200 50812 (188 days) terminated by surrender and unauthorized absence 20050822 - 20051011 (49 days) terminated by apprehension by civilian law enforcement personnel). A qualified legal defense counsel represented the Applicant during his trial by Special Court-Martial. The Applicant was tried in accordance with a signed pre- trial agreement in which he pled guilty before a judge alone. Given the facts of the case, the military trial judge awarded the Applicant a Bad Conduct Discharge, a reduction in rank to the pay grade of E-1 , and confinement for a period of 48 days. The 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 25 January 2007 .

Nondecisional Issue : The Applicant seeks clemency in the form of an upgrade in the characterization of his service at discharge in order to facilitate employment opportunities and access to VA benefits . T h ere is no requirement, or law, that grants re-characterization solely on the issue of facilitating employment opportunities or for facilitating access to VA or other Government benefit programs . 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. As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.

Decisional Issue: (Clemency/Equity) CLEMENCY NOT WARRANTED. The Applicant did not identify any decisional issues related to the equity of his discharge for consideration by the NDRB . The Applicant requested a change in the characterization of his service at discharge to General (Under Honorable Conditions) or Uncharacterized. A n administrative separation initiated while a member is in an entry level status ( i.e. , within the first 180 days of continuous active duty) may receive an Uncharacterized characterization , except when an Under Other Than Honorable characterization is authorized under reasons for separation and is warranted by the circumstances of the case. The Applicant was not eligible for an Uncharacterized discharge , because he had more than 180 days of service at the time he was notified of discharge proceedings . Additionally, an Uncharacterized discharge is an administrative discharge characterization of service; due to the Applicant’s chronic and extensive periods of absence, the Command opted for punitive punishment via trial by court - martial instead of the more lenient administrative discharge process. T he Applicant was subject to a S pecial C ourt -M artial for two periods of unauthorized absence in excess of 30 days . A bsence in excess of 30 days is a serious military offense , warranting adjudging of a Bad Conduct Discharge and possible confinement for up to one year. In the Applicant’s specific case, the military judge determined that retention and rehabilitation was not warranted and adjudged punis hment to include a Bad Conduct D ischarge.

The Applicant’s service record documents a period of service of approximately 4 months prior to his absenting himself from his unit; in this short period of time, he absented himself from his unit for 29 days (20050105-20050203). Two days after his return from this unauthorized absence, the Applicant again absented himself from his unit (20050205), without authority, and remained so absent until surrendering himself to military authority (20050812) - a period of absence of 188 days. When notified of pending trial by S pecial C ourt -M artial, the Applicant again, for a third time, absented himself from his unit (20050822) without authority, and remained absent until apprehended by civilian law enforcement personnel (20051011) - a period of absence of 49 days. The Applicant was returned to military authority on 20051013; he was immediately placed in pre-trial confinement, pending a trial by S pecial C ourt -M artial. The Applicant’s misconduct documents a deliberate pattern of misconduct related to unauthorized absence and a general failure to conform to military rules and regulations. Due to the Applicant’s refusal to conform to the expected conduct of a United States Marine , coupled with the need to ensure good order and discipline of the service, the Command referred the numerous unauthorized absence charge s to trial by Special Court - Martial. The stated misconduct resulted in the awarding of a punitive Bad Conduct Discharge, a reduction in pay grade , and confinement for a period of 48 days.

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. Given the short period of the Applicant’s service, coupled with the repetitive and extensive nature of the misconduct, ended only by apprehension, the NDRB agreed unanimously that the punishment, as awarded, was warranted and was equitable; relief in the form of clemency is not warranted. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, the record of trial 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 | MD1002230

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