Upgrade.Vet

USMC | DRB | 2011_Marine | MD1100053

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

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20101007

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)       NONE      Active:

Period of Service Under Review:
Date of Current Enlistment: 20070212     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20090720      H ighest Rank:
Length of Service : Y ea rs M on ths 09 D a ys
Education Level:        AFQT: 68
MOS: 1341
Proficiency/Conduct M arks (# of occasions): NFIR / NFIR          Fitness R eports:

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

Period of Confinement : 20080403 - 20080408 (I n hands of civil authorities: 6 days); 20080410 - 20080505 ( Pre-trial : 26 days ) ; 20080615 - 20080825 (Pre-trial : 72 days)

Periods of Unauthorized Absence: 20080128 - 20080403 (67 days)

Period of Time Lost: 20080102 - 20080127 (26 days , s pecific reason for time lost not found in record )

NJP: NFIR         SCM: NFIR                  CC: NONE

SPCM: 1

- 20080826 :       Art icle 86 (Absence without leave ; did absent himself from his unit, without authority on 20080128 and did remain so absent until 20080403 ; absence terminated by civilian law enforcement apprehension ( 67 days ))
         Article 121 (Larceny, wrongfully appropriate d a cell phone of a value less than $500.00)
         Article 128 (Assault, assaulted a staff sergeant by charging at him in an aggressive manner)
         Article 134 (General A rticle, drunk and disorderly conduct )
         Sentence As Adjudged : BCD, RIR to E-1 , FOP , CONF for 120 days
         Convening Authority Action: The sentence is approved and, except for the bad conduct discharge which requires appellate review , will be executed .

Retention Warning Counseling : 1

- 20070808 :       For being late to remedial physical training and for yelling and talking back to a SNCO

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 an upgrade in the characterization of his service at discharge in order to facilitate re-enlist ment in the Armed Forces ( National Guard ) .

Decisional Issues: The A pplicant did not identify any specific issues related to the equity of his discharge characterization for consideration by the NDRB; however, by submission of his application for review, he is requesting consideration for clemency.

Decision

Date: 20 1 201 12 Location: Washington D.C . R epresentation : Civilian counsel

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 , which 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’s service record indicates he entered military service at age 22 on a 4-year enlistment contract. The Applicant’s enlistment record reflects his entry into military service with a wa i ver for having been discharged from the Delayed Entry Program (DEP) previously for illegal drug use (marijuana) while in the DEP . The Applicant enlisted on a 4-ye ar Mechanical Option contract. The Applicant’s record of service reflects no paragraph 6105 retention-counseling warnings or any administrative punishments (nonjudicial punishment or S ummary C ourt -M artial). However, the service record does document that the Applicant was subject to trial by S pecial C ourt -M artial for violation of the UCMJ as follows: Article 86 (Unauthorized a bsence - 20080128 to 20080403 , 67 days of unauthorized absence, terminated by civilian law enforcement apprehension and return to military custody) , Article 121 (Larceny , 16 May 08) , Article 128 (Assault , 15 June 08) , and Article 134 ( General Article, d runk and disorderly , 15 June 08) . A qualified legal defense counsel represented the Applicant throughout the trial by Special Court-Martial. In accordance with a written and signed pre-trial agreement, the Applicant agreed to trial by military judge alone and further elected to plead guilty to the charge s . T he Convening Authority agreed to limit any adjudged period of confinement . Given the facts of the case and the Applicant’s testimony , the judge awarded the Applicant a Bad Conduct Discharge, a forfeiture of pay for 4 months, reduction in rank to E-1, and confinement for 120 days. Due to pre-tri a l confinement, restriction, and time in the hands of civilian authorities, the Applicant was credited 106 days toward the confinement. While confined, the Applicant requested th at the Convening Authority not consider any matters of clemency. As such, the C onvening Authority ordered the sentence executed and t he case was submitted for appellate review , without assignment of error , to the U.S. Navy–Marine Corps Court of Criminal Appeals . The case was reviewed and the findings were affirmed. Subsequently, the Navy Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed . The Applicant’s Bad Conduct D ischarge was effected on 20 July 2009 .

Nondecisional Issue : The Applicant seeks an upgrade in the characterization of his service at discharge in order to facilitate reenlistment in the Army National Guard. There is no requirement, or law, that grants re-characterization solely on the issue of facilitating reenlistment opportunities. Regulations limit the NDRB’s review solely to a determination of clemency based on matters of 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 establish relief.

Decisional Issue: (Clemency/Equity) RELIEF NOT WARRANTED. The Applicant did not identify any issues related to the equity of his discharge; however, by submission of his application for review , he is requesting consideration for clemency based on inequity of the discharge action. 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; matters of propriety are decided and upheld through the appellant’s right to legal review process. As such, 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 2 months of active honorable service prior to absenting himself from his unit. The Applicant submitted no mitigation to his unauthorized absence. The Applicant opted to absent himself from his unit and then chose to remain absent for 67 days , which was terminated only due to his apprehension in Alaska by civilian law enforcement personnel. The Applicant had many opportunities t o return himself to his unit ; he chose not to. After the initial 30 days of absence, the command dropped the Applicant from the unit rol l s and declared him a deserter .

Absence in excess of 30 days is considered a serious offense by the UCMJ , punishable by a punitive discharge (Bad Conduct Discharge or Dishonorable Discharge) and confinement for up to 18 months when the absence is terminated by apprehension. The Applicant’s misconduct documents an extensive period of unauthorized absence and a general failure to conform to military rules and regulations with an intent to remain absent and avoid his military duties. After a pprehension and return to military custody, the Applicant was placed in pre-tr i al confinement. After being released from pre-trial confinement, the Applicant was suspect ed of violating the UCMJ by committing l arceny (theft of a cell phone), a ssault, and being drunk and disorderly. Following these violations of the UCMJ, the Applicant was returned to pre-trial confinement. 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 period of unauthorized absence and other related charges to a trial by Special Court - Martial. The stated misconduct resulted in the awarding of a punitive Bad Conduct Discharge, reduction in rank to E-1, a forfeiture of pay, and confinement for a period of 120 days.

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 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 documented unauthorized absence , coupled with the continued violations of the UCMJ while pending charges, documents a general contempt for good order and discipline 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 extensive length of the unauthorized absence that was terminated by apprehension, the NDRB agreed unanimously that the punishment, as awarded, was warranted and was equitable; it was, and remains, a proper reflection of the Applicant’s service and reason for discharge. As such, relief in the form of clemency is not warranted.

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 | 2011_Marine | MD1100053

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