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USMC | DRB | 2010_Marine | MD1002320
Original file (MD1002320.rtf) Auto-classification: Denied
ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20100922
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)       19900112 - 19900327     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19900328     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19970508      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 13 D a y ( s )
Education Level:        AFQT: 45
MOS: 2531
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle , , , , , , ,

Periods of Unauthorized Absence: 19921102 (1 day);

Periods of C onfinement : Pre-trial 19921230 - 19930105 (6 days) , 199 30120 - 19930222 ( 3 5 days) ; Post-trial 19930223 - 19930320 ( 26 days)

NJP:
- 19920128 :       Article ( Absent without leave - U nauthorized a bsence, failure to be at appointed place of duty from 0530 - 0635, 19920110)
         Awarded : Susp ended:

- 19920821 :       Article (False official statement, did sign a page 11 stating h e lost an ID card , which he knew at the time to be false )
         Article (General A rticle, did wrongfully alter a Military ID card on 19920702)
         Awarded : Susp ended:

- 19921125 :       Article ( Absent without leave - Unauthorized a bsence, did absent himself from his unit, without authority, from 0600, 19921102 to 0730, 19921103 - 1 day)
         Awarded : Susp ended: Vacated 19921228

SCM:     CC:

SPCM:

- 19930223 :       Art icle ( Absence without leave - Unauthorized absence, 3 specifications )
         Specification 1: Failed to go to appointed place of duty at prescribed time on 19921212 at Bldg #212 MCAS Kaneohe Bay, HI for mess duty.
         Specification 2: Failed to go to appointed place of duty at prescribed time on 19921213 at Bldg #212 MCAS Kaneohe Bay, HI for mess duty.
         Specification 3: Failed to go to appointed place of duty at prescribed time on 19921217 at Bldg #212 MCAS Kaneohe Bay, HI for mess duty.
          Article 134: (General A rticle, 3 specifications )
         Specification 1: With intent to defraud, false ly pretend to be able to pay for taxi services, a value of $30.25.
         Specification 2: With intent to defraud, false ly pretend to be able to pay for taxi services, a value of $33.00.
         Specification 3: With intent to defraud, false ly pretend to be able to pay for taxi services, a value of $27.50.
          Additional Charge I : Article 86 (Did at 0900, 1100, 1300, 1900, 2000, and 2145 , on 17 January 1993, fail to sign in for restriction with the DNCO)
         Additional Charge II : Article 86 (Did at 1 9 00 , 19921206, fail to sign in for restriction with the DCNO)
         Sentence Awarded : , for 3 months, Confinement for 3 months,
                  C onvening Authority Action : Sentence is approved and, except for the BCD, is ordered ex e cuted

Retention Warning Counseling : 3

- 19911227 :       For failure to be at appointed place of duty, on 19 911220, HQ Communication Shop, B ldg 1034, and morning formation.

- 19920623 :       For failure to conform to barrack s regulations concerning hard alcohol in the BEQ.

- 19921125 :       For frequent involvement of violation of MCOs and regulations. You have a pattern of misconduct and failure to adjust to military life, constantly UA.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) 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

 Nondecisional issues: The Applicant seeks clemency in the form of an upgrade in the characterization of his service at discharge to Honorable in order to facilitate access to Department of Veterans Affairs (VA) medical benefits and medication assistance programs.

Decisional issues : The Applicant seeks an upgrade in the characterization of his service at discharge, contending that his discharge was inequitable; the Applicant’s misconduct was the result of a mental health disorder that would have be en diagnosed prior to trial had he been granted the mental health evaluation requested by his family .

Decision

 Date : 20 1 20103           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 those discharges, the NDRB presumes regularity in the conduct of Government al affairs unless there is substantial, credible evidence to rebut the presumption, to include evidence submitted by an Applicant. With respect to a discharge adjudged by a special 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 reviewed under the pertinent standard of equity to determine if any factors in this par ticular case merited clemency.

The Applicant’s service record documents that he entered active duty service at age 19 on a four-year enlistment contract under a Communications O ption training guarantee. The Applicant’s enlistment record reflects entry into the military service with a waiver to enlistment and indu ction standards for a pre-service conviction of underage alcohol use and a medical waiver . The highest rank achieved by the Applicant during his enlistment was E-3/Lance Corporal. The Applicant’s service record further documents that he is a v eteran, having served overseas in support of combat operations during Operation DESERT SHIE LD and Operation DESERT STORM.

During the Applicant ’ s period of service, he received three paragraph 6105 retention-counseling warnings , which included notification of a documented pattern of misconduct, warrant ing processing for administrative separation . T hroughout his period of enlistment , the Applicant was subject to three nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ) : Article 86 (Absence without leave, 2 specifications: F ailure to be at appointed place of duty 199 20110 and unauthorized absence from 199 21102 to 199 21103 ) , Article 107 ( False o fficial s tatement ) , and Article 134 ( Wrongfully altering military identification card) . Moreover, the Applicant was then subject to a punitive S pecial C ourt -M artial proceeding on 23 February 1993 for the following violations of the UCMJ: Article 86 (Absence without leave - F ailure to be at his appointed place of duty, 5 specifications ) and Article 134 (Obtaining services under false pretenses, 3 spec ifications).

A qualified legal defense counsel represented the Applicant throughout the trial by Special Court-Martial process . The Applicant was tried without benefit of any pre-trial agreement; however, he elected trial by a military judge alone and he entered a plea of not guilty to the charges as specified . Given the f acts of the case, the Military J udge found the Applicant guilty of the charges (as amended) and awarded the Applicant a reduction to pay grade E-1, confinement for a period of 3 months , a forfeiture of pay for 3 months, and a Bad Conduct Discharge. The case was submitted for review to the U.S. Navy–Marine Corps Court of Criminal Appeals with one assignment of error; it was reviewed and the findings were affirmed. The Applicant elected not to appeal the decision; s ubsequently, the Navy Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed. The Applicant’s final discharge was effected on 08 May 1997 .

Nondecisional Issue : The Applicant seeks clemency in the form of an upgrade in the characterization of his service at discharge to Honorable in order to facilitate access to VA medical benefits and medication assistance programs. 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 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 w hich the NDRB can grant relief.
Decis ional Issue: (Clemency/Equity) RELIEF NOT WARRANTED. The Applicant seeks an upgrade in the characterization of his service at discharge, contending that his discharge was inequitable; the Applicant’s misconduct was the result of a mental health disorder that would have be en diagnosed prior to trial had he been granted the mental health evaluation requested by his family . The Applicant contends his problems were attributed to a mental health disorder, diagnosed after his service, which was the causal factor to his misconduct in service. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. Based on the Applicant’s contention s regarding mental health issues , the Navy - Marine Corps Court of Criminal Appeals , when reviewing the Applicant ’ s Bad Conduct Discharge, directed that a hearing be held to determine if the Applicant was mentally responsible for his conduct o r if he was capable of participating meaningfully with his counsel in his defense (Rules for Court Martial (R . C . M . ) 706). This evaluation determined that the Applicant was mentally responsible at the time of his misconduct and was capable of participating meaningfully with his defense counsel. Given the findings of the R.C.M. 706 hearing, the Navy-Marine Corps C ourt of Criminal Appeals upheld the finding that the diagnosis of a severe mental disease or defect d id not translate directly to a defense of lack of mental responsibility . The Applicant failed to show any direct connection between his behaviors , a s it relate d to his mental condition, and a specific offense as charged. As such, the Court of Appeals upheld the findings of the S pecial C ourt -M artial and affirmed the Bad Conduct Discharge, ordering it executed. The Applicant was provided the opportunity to appeal this decision to the Court of Appeals of the Armed F orces , which h e declined to do - in writing - on 06 May 1997.

The NDRB recognizes that serving in the military is challenging and that many of our service members are young at the time they enlist for service, however, most manage to serve their enlistment s honorably. In fairness to those service members, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. When reviewing a discharge, the NDRB does consider the extent to which a medical problem (physical or mental health) might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline. There is no evidence in the record, nor did the Applicant provide any documentation, to indicate he attempted to u s e the numerous services available for service members who undergo personal problems during their enlistment , such as the Navy Chaplain, Medical or Mental Health professionals, Navy Relief Society, Family Advocacy Programs, the Red Cross, or even his own chain of command. Though the Applicant may feel that his post - service diagnoses of a mental condition or disorder was the underlying cause of his misconduct, the record clearly reflected a pattern of willful misconduct and demonstrated he was unfit for further military service. The NDRB determined that the Applicant failed to demonstrate that he was not mental ly responsible for his actions or incapable of participating meaningfully with his defense counsel at the time of his misconduct, nor does his diagnosis, post-service, mitigate his well - docum ented pattern of misconduct.

The pattern of documented absences 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 was awarded. Given the period of the Applicant’s service, coupled with the repetitive and serious nature of the misconduct, the NDRB agreed unanimously that the punishment, as awarded, was warranted and was equitable; 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 verbatim 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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