Upgrade.Vet

USMC | DRB | 2011_Marine | MD1100105

Original file (MD1100105.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20101014

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)       20010330 - 20010422     Active:

Period of Service Under Review:
Date of Current Enlistment: 20010423     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20030903      H ighest Rank:
Length of Service : Y ea rs M on ths 12 D a ys
Education Level:        AFQT: 42
MOS: 6311
Proficiency/Conduct M arks (# of occasions): / NFIR      Fitness R eports:
Awards and Decorations ( per DD 214):      Rifle , NDSM

NJP: 1
- 20011212 :      Article 92 (Failure to obey order or regulation, failed to attend alcohol impact training, overindulgence in intoxicating liquor )
         Article 134 (Incapacitated for the performance of duties due to overindulgence in intoxicating liquor)
         Awarded : RIR FOP RESTR EPD Suspended: FOP

SPCM: 1
- 20020520 :       Art icle 86 (Absence without leave : fail ure to go to appointed place of duty , 7 specifications )
         Specification 1: Physical therapy clinic, 0730 , 20011101
         Specification 2: Physical therapy clinic, 0700 , 20011106
         Specification 3: Physical therapy clinic, 0700 , 20011108
         Specification 4: Sick call clinic, 1040 , 20011114
         Specification 5: Sick call clinic 0900 , 20011129
         Specification 6: Physical therapy clinic 0900 , 20011204
         Specification 7: Physical therapy clinic 0900 , 20011206
         Article 89 ( Disrespect toward superior commissioned officer, 3 specifications )
         Specification 1: Walked away from a Navy lieutenant (LT) while mumbling “son of a bitch”
         Specification 2 : By saying to a LT junior grade “I am a man first before a Marine and I don’t have to take this” and “ I don’t feel like going there, I’m gonna go back to the barracks and sleep” and walked away conptemptuously mumbling words under his breath
         Specification 3 : Saying about a LT junior grade “I don’t want to s ee that mother fucker” to an HM
         Article 111 ( Drunken or reckless operation of a vehicle : drunk operation of a motor vehicle on board NAS Pensacola on 20020403 )
         Art icle 115 (Malingering, for the purpose of avoiding his service as an enlisted man : bilateral knee pain)
         Article 134 (Break ing R estriction on 20020403 - a lawful order imposed by the Commanding Officer )
         Sentence Adjudged : BCD, CONF 145 days ( Pre-tr i al Confinement 20020404 - 20020519 (46 days); Confinement 20020520 - 2002061 7 (28 days) 7 4 total days served )
         Convening Authority Action : The sentence is approved and, except for that part of the sentence extending to a bad conduct discharge, will be executed, but confinement in excess of 90 days will be suspended for 6 months.
SCM: NONE        CC: NONE

Retention Warning Counseling : 2

- 20010118 :       For unauthorized absences, possession of alcohol in barracks, drinking on duty section, failure to attend impact training

- 20011105 :       For unauthorized absence from 0720 to 1000 on 20011101, possession of alcohol and drinking while on duty section

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

Issue 1: The Applicant seeks an upgrade in the characterization of his service at discharge in order to facilitate access to Department of Veterans Affairs (VA) medical benefits for service caused/service aggravated issues .

Decision

Date: 20 120412 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 standards of equity to determine if any factors in this particular case merited clemency. Matters of propriety are addressed through the Courts of Appeal as a function of the Applicant’s legal rights.

The Applicant’s service record indicates he entered military service at age 24 on a four-year enlistment contract. The Applicant’s enlistment record reflects his entry into military service with out 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 period of service under review documents that his service contained two paragraph 6105 retention-counseling warnings for minor misconduct and a nonjudicial punishment for violation of the Uniform Code of Military Justice (UCMJ) : Article 92 (Failure to obey order or regulation) and Article 134 (Drunken incapacitation for the performance of duties due to prior indulgence). Moreover, the Applicant’s service record documents a punitive conviction and punishment as adjudged by a S pecial C ourt -M artial on 20 May 2002 . The Applicant was subject to trial by S pecial C ourt -M artial for multiple violations of Article 86 (Unauthorized a bsence ; failure to go to appointed place of duty) ; multiple violations of Article 89 (Disrespect toward a superior commissioned officer); violation of Article 115 (Malingering); violation of Article 111 (Drunk Driving - aboard a military installation); and violation of Article 134 (Breaking Restriction Order as imposed by the Commanding Officer). A qualified legal defense counsel represented the Applicant during his trial by Special Court-Martial. Given the facts of the case, the trial judge awarded the Applicant a Bad Conduct Discharge and confinement for a period of 145 days. The Applicant was tried in accordance with a signed pre-trial agreement in which he agreed to plead guilty and accept trial by judge alone in exchange for leniency on matters of sentencing (confinement no greater than 90 days) . The case was submitted for review to the U.S. Navy - Marine Corps Court of Criminal Appeals without assignment 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 effective 3 September 2003.

Issue 1: (Nondecisional ) The Applicant seeks an upgrade to his discharge characterization of service in order to achieve eligibility for Department of Veterans Affairs (VA) medical benefits and counseling. 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 the propriety and the equity of a discharge. In the case of a punitive court - martial adjudication, the NDRB is further restricted to consideration of matters regarding equity only to determin e if clemency is warranted. As such, this issue does not serve to provide a foundation upon wh ich the NDRB can grant relief.

The Applicant did not identify any decisional issues related to the equity of the discharge action for the NDRB’s consideration in determining if clemency is warranted . However, the NDRB conducted a detailed review of the service record and the record of trial to determine if any matters warranted consideration for clemency. The Applicant’s service record documents a period of service of approximately 1 year before being adjudged a Bad Conduct Discharge by a Special Court - Martial. In this short period , the Applicant amassed two retention-counseling warnings, a nonjudicial punishment , and a S pecial C ourt -M artial while assigned to his Military Occupation Specialty training command. The Marine Corps substantially invests in training every person who enters its ranks. Separation before completion of a period of obligated service represents a loss of investment while requiring increased accessions. Conversely, retaining individuals in the Marine Corps who will not or cannot conform to required standards of conduct, discipline, and performance creates high costs in terms of substandard mission performance, administrative efforts, pay, and degradation of morale. Both situations represent an inefficient use of limited resources. Therefore, every reasonable effort is made to identify, in a timely manner, members who exhibit likelihood for early separation . The Applicant ’ s misconduct documents a pattern of deliberate and willful 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 standards and conduct of a United States Marine - after counseling and administrative punishment , coupled with the need to ensure good order and discipline of the service, the Command referred the final charges that had amassed to trial by Special Court - Martial. The stated misconduct resulted in the awarding of a Bad Conduct Discharge and confinement for 145 days.

The pattern of documented unauthorized absences, disrespect , alcohol abuse, and general contempt for good order and discipline is not minor misconduct and support s 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 deliberate nature of the misconduct, the NDRB agreed unanimously that the punishment, as awarded, was warranted and was equitable; relief in the form of cl emency 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 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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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 | MD1100105

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