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USMC | DRB | 2011_Marine | MD1100060

Original file (MD1100060.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)       19941114 - 19950116     Active:

Period of Service Under Review:
Date of Current Enlistment: 19950117     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080401      H ighest Rank:
Length of Service : 3 Y ea r ( s ) M on th ( s ) 09 D a y ( s )
Education Level:        AFQT: 33
MOS: 3531
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA /CONF : (998 days) 19981026 - 20010720; (2 , 387 days) 20010809 - 20080221 / NONE

NJP: SCM:

SPCM: Charges were preferred for violations of Article 86 (Unauthorized absence - 2 specifications totaling 3 , 385 days). The Applicant requested to be separated in lieu of trial by court-martial. The command and separating authority approved the Applicant’s request and discharged him accordingly.

CC: Retention Warning Counseling:

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “ UNDER OTHER THAN HONORABLE CONDITIONS ”

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:                  Other Documentation:
                  Additional Statements:
         From Applicant:          From/To Representation:          From/To Congress member:

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

Applicant’s Issues

1. The Applicant contends his discharge was inequitable , because it was based on an isolated incident in three years and nine months of service.
2. The Applicant believes his discharge was inequitable , because his medical condition hindered his ability to exercise sound judgment and decision making at the time of his discharge .

Decision

Date: 20 1 1 09 29 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 discharges, the Board presumes regularity in the conduct of g overnment al a ffairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. T he Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent sta ndards of equity and propriety. The Applicant’s record of service included charges being preferred to a Special Court-Martial (SPCM) for violations o f the Uniform Code of Military Justice (UCMJ): Article 86 (Unauthorized absence - 2 specifications totaling 3 , 385 days). On 5 March 2008, the Applicant formerly requested separation in l ieu of t rial by c ourt -m artial (SILT) for the good of the service to escape trial by court-martial. In the request , the Applicant noted that his counsel had fully explained the elements of the offenses for which he was charged and that he was guilty of the offenses. He further certified a complete understanding of the negative consequences of his actions and that characterization of service could be under other than honorable conditions. The command and separating authority approved the Applicant’s request and discharged him accordingly.

: (Decisional) ( ) . The Applicant contends his discharge was inequitable , because it was based on an isolated incident in three years and nine months of service. D espite a Marine’s prior record of service, certain serious offenses, even though isolated, warrant separation from the N aval S ervice in order to maintain proper order and discipline. T he Applicant went UA for two extended period s - one for 998 days and the second for 2 , 387 days. He was referred for trial by SPCM but was separated administratively after the Separating Authority approved the Applicant’s request to be separated in lieu of trial by court-martial. The Applicant is extremely fortunate that he received an Under Other Than Honorable Conditions discharge as most UAs of this length result in a punitive discharge after a court-martial. Relief denied.

: (Decisional) ( ) . The Applicant believes his discharge was inequitable , because his medical condition hindered his ability to exercise sound judgment and decision making at the time of his discharge . He insists that t his ambiguity led to him sign ing the SILT request letter vice a court-martial request that he wanted . T he Applicant signed a statement that he freely and voluntarily requested separation in lieu of trial without coercion or pressure in any form from any person. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. While his service and medical records document his health issues, there is no indication that these in any way affected his ability to make decisions for himself or that he was not accountable for his decisions. Additionally, there is nothing in the record, nor did the Applicant provide any evidence, to show that he or his family attempted to contact the Marine Corps concerning his health issues during his two extended UAs. His two extended UAs are serious offenses that could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentence by a special or general court - martial. The record shows the Applicant requested SILT. The command accepted the Applicant’s request for SILT instead of pursuing a punitive discharge , and it appears from documentation in the service record that the Applicant’s health issues played a mitigating role in the Separating Authority’s decision not to court-martial the Applicant but to allow him to be administratively separated with an Under Other Than Honorable Conditions characterization of service . The Applicant’s characterization of service is appropriate as assigned. The NDRB determined an upgrade is not warranted.

S ummary: After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall 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 Medical Conditions and Misconduct, Additional Reviews, Automatic Upgrades, and Post-Service Conduct .

Pertinent Regulation/Law

A. Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY 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 II, Para 211, Regularity of Government Affairs , Part V, Para 502, Propriety and Para 503, Equity .

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 | MD1100060

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