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USMC | DRB | 2010_Marine | MD1002323
Original file (MD1002323.rtf) Auto-classification: Denied
ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20100923
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to: OR UNCHARACTERIZED
         Narrative Reason change to:

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       19970731 - 19971021     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19971022     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20021022      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 13 D a y ( s )
Education Level:        AFQT: 49                
MOS: 3531
Proficiency/Conduct M arks (# of occasions): /          Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle ,

NJP:

- 19990702 :       Article (Larceny and wrongful appropriation, stole a bottle of cologne, valued at $27 . 00)
         Awarded : Susp ended:

SCM:     CC:

SPCM:

- 19991015 :       Art icle ( Absence without leave - Absented himself from his unit, without proper authority, on 19990801 and remained so absent until 19990921 wherein his absence was terminated through apprehension by civilian law enforcement personnel; total days absent - 5 1 days )
         Sentence Adjudged : CONF for 9 0 days (19990921-19991128, 68 days served ) , ,

- 20001207 :       Art icle ( Absence without leave - Absented himself from his unit, without proper authority, on 20000418 and remained so absent until 20001020 wherein his absence was terminated through apprehension by civilian law enforcement personnel; total days absent - 185 days )
         Sentence Adjudged : , CONF for 60 days (20001020-20001207, 48 days served ) ,

Retention Warning Counseling :

- 19981208 :       For failure to pay just debts, confirmed by AT&T services letter dated 19981106.





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

 1.       Nondecisional issue: The Applicant seeks clemency and a change in his reenlistment code (RE-Code) in order to facilitate reenlistment in the armed forces to correct his past mistakes .

2.       Decisional issue s : The Applicant did not identify any decisional issues related to the equity of the discharge action for the NDRB’s consideration ; however, by submission of his DD Form 293, the Applicant is seeking a review for clemency in upgrading his discharge characterization as requested .

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

 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 particular case merited clemency.

The Applicant entered military service at age 1 7 (with parental consent) on a four year enlistment with a guaranteed contract of Transportation Option. The Applicant’s enlistment record reflects his entry into the military service with a waiver to enlistment and induction standards for pre-service illegal drug use (marijuana) . During the enlistment process, the Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning the Illegal Use of Drugs - in writing - on 30 July 1997 . The Applicant satisfactorily completed one year and nine months of service before absenting himself from his unit, being dropped from his unit’s rol l s, and being declared a deserter; the remainder of his enlistment period was served either in confinement, in an unauthorized absence status, or on appellate leave, pending review of his punitive discharge.

The Applicant’s record of service documents one retention counseling warning for failure to pay just debts and one nonjudicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ): Article 121 (Larceny and wrongful appropriation). Moreover , the Applicant’s service record documents a S pecial C ourt- M artial for violation of the UCMJ: Article 86 ( Absence without leave - Absented himself from his unit, without proper authority, on 19990801 and remained so absent until 19990921 wherein his absence was terminated through apprehension by civilian law enforcement personnel; total days absent - 51 ) . The military j udge awarded the Applicant 90 days confinement in the base brig and a reduction in ra nk to E-1/Private; the Applicant served a total of 68 days confinement and was released to his command to resume his duties. Approximately four and a half months later, the Applicant again absented himself from his unit on 20000418, without authority , and did remain so absent until 20001020, wherein his absence was terminated through apprehension by civilian law enforcement personnel; total days absent - 185). Upon the Applicant’ s return to military custody, he was ordered to pre-trial confinement, pending another t rial by Special Court-Martial.

A qualified legal defense counsel represented the Applicant throughout his trial s by Special Court-Martial. Given the facts of the case during the second court - martial , the j udge found the Applicant guilty of the charge as specified and adjudged confinement for a period of 60 days and to be discharge d from the Naval S ervice with a Bad Conduct Discharge . 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 22 October 2002 .




Nondecisional Issue : The Applicant seeks clemency and a change in his reenlistment code (RE-Code) in order to facilitate reenlistment in the armed forces to correct his past mistakes . The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the armed forces, and is not authorized to change a reentry code. 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) RELIEF NOT WARRANTED. The Applicant did not identify any decisional issues related to the equity of the discharge action for the NDRB’s consideration ; however, by submission of his DD Form 293, the Applicant is seeking clemency by requesting an upgrade to his discharge characterization (either Uncharacterized or General (Under Honorable Conditions)) . 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. During this time, the Applicant was subject to a nonjudicial punishment and received a retention counseling warning for failure to pay just debts. The Applicant then absented himself, without authority , from his unit for 51 days, returning to military authority only after being apprehended by civilian law enforcement authorities . The Applicant was referred to a S pecial C ourt- M artial , which adjudged 90 days of confinement and a reduction in rank to E-1; upon completion of his adjudged confinement, the Applicant returned to duty with his unit. Only four and a half months later, the Applicant again absented himself from his unit for 185 days; he was apprehended by civilian law enforcement authorities and again returned to military authority. The C ommand referred the Applicant to a second trial by S pecial C ourt -M artial , this time receiving a punitive Bad Conduct Discharge as part of the adjudged sentence . The Applicant’s misconduct clearly documents a 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 an administrative punishment and a punitive court - martial , coupled with the need to maintain good order and discipline of the service, the military judge determin ed that retention and rehabilitation was not warranted and awarded a punitive Bad Conduct Discharge .

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 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 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, ended only by apprehension, the NDRB agreed unanimously that the punishment, as awarded, was warranted, was equitable, and remains a proper reflection of the Applicant’s service and reason for discharge; as such, relief in the form of clemen cy 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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