Upgrade.Vet

USMC | DRB | 2011_Marine | MD1100114

Original file (MD1100114.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20101019

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)       19991028 - 2000529      Active:

Period of Service Under Review:
Date of Current Enlistment: 20000530     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20030425      H ighest Rank:
Length of Service : Y ea rs M on ths 27 D a ys
Education Level:        AFQT: NFIR
MOS: 0300
Proficiency/Conduct M arks (# of occasions): /         Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of CONF : 20000919 - 20001011 (29), 20001121 - 20001127 (7)

NJP: 2

- 20000911 :      Article 92 (Failure to obey order or regulation , 08 Sept 2000 and 09 Sept 2000 - refusal to train)
         Awarded: FOP , RESTR , EPD Suspended:

- 20000912 :      Article 92 (Failure to obey order or regulation , 12 Sept 2000 - refusal to train)
         Awarded : FOP , RESTR , EPD Susp ended:

SCM: NONE         CC: NONE                  Retention Warning Counseling : NONE

SPCM: 1

- 20010711 :       Article (Absent without leave; absented himself from his unit, without authority on 20001217 and did remain so absent until 200 10530 ( 163 days) - absence terminated by apprehension by civilia n law enforcement authorities)
         Sentence Adjudged: , FOP, Confinement for 90 days (Pre-trial 20010604 - 20010710, 40 days) (20010711-20010713, 2 days).
         Convening Authority Action: The sentence is approved and, except for the B ad C onduct D ischarge, is ordered executed. In accordance with the terms of the Pr e -Trial Agreement, all confinement in e xcess of 55 days is suspended.

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 and a change in his reenlistment code (RE-Code) in order to facilitate reenlistment in the A rmed F orces.

Decisional Issues: The Applicant contends his characterization of service at discharge was inequitable; his youth and immaturity at the time led to poor judgment and is a mitigating factor to his misconduct of record. The Applicant believes his post-service conduct is worthy of consideration.

Decision

Date: 20 1 20209 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, 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 recognized 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’s service record indicates he entered military service at age 17 (with parental consent) on a 4-year enlistment contract under a guarantee of Infantry Option as a contract E-1/Private. The Applicant’s enlistment record reflects his entry into military service without any waivers to enlistment and induction standards. The highest rank achieved by the Applicant during his enlistme nt tenure was E-1/Private. The Applicant’s record of service documents two nonjudicial punishment s for violation s o f the Uniform Code of Military Justice (UCMJ): specifically, Article 92 ( F ailure to obey order or regulation - refusal to train , 2 separate specifications ). Additionally, the Applicant’s record of service documents further disciplinary action through trial by Special Court - Martial for violation of Article 86 of the UCMJ (Absent without leave - unauthorized absence from his unit for 163 days - terminated by apprehension by civilian law enforcement personnel). A qualified legal defense counsel represented the Applicant throughout the trial by Special Court-Martial process. In accordance with a signed pre-trial agreement, the Applicant requested trial by judge alone and pled guilty to the charge, as specified, in exchange for a sentence limitation regarding confinement. Given the facts of the case, the military trial judge awarded the Applicant a Bad Conduct Discharge and confinement for a period of 90 days. The Applicant served 4 2 days of the sentence before being released from confinement due to the sentence limitations contained within the pre-trial agreement and credit for good time. The Convening Authority took final action on the case and upheld the sentence, as adjudged, on 12 December 2001. The case was submitted for review without any assignment of error to the U.S. Navy–Marine Corps Court of Criminal Appeals; it was reviewed and the findings of the lower court were affirmed on 17 December 2002 . Subsequently, the Navy Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed , and the Applicant was discharged from the Marine Corps with a Bad Conduct Discharge.

Nondecisional Issue: The Applicant seeks clemency in requesting an upgrade in the characterization of his service at discharge and a change in his reenlistment code (RE-Code) in order to facilitate reenlistment in the Armed Forces. There is no requirement, or law, that grants re-characterization solely on the issue of facilitating reenlistment opportunities. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the A rmed F orces, and is not authorized to change a reentry code. Additionally, there is no requirement, or law, that grants re-characterization solely on the issue of facilitating employment opportunities or access to v eterans benefits programs. In the case of a p unitive d ischarge, regulations specifically limit the NDRB’s review solely to a determination of clemency based on matters regarding the equity of a discharge. As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.

Decisional Issue (Clemency/Equity) CLEMENCY NOT WARRANTED. The Applicant contends his characterization of service at discharge was inequitable; his youth and immaturity at the time led to poor judgment and is a mitigating factor to his misconduct of record. Additionally, t he Applicant believes his post-service conduct is worthy of consideration. 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.

Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Marine Corps in order to maintain the good order and discipline of the service ; v iolation of Article 86 (in excess of 30 days) and Article 92 are such offense s . Th ese action s usually results in an unfavorable characterization of service at discharge or, at a maximum, a punitive discharge, and possible confinement if adjudicated and awar ded as part of a sentence by a S pecial or G eneral C ourt- M artial. The NDRB recognizes that many of our service members are young at the time they enlist for service but most still manage to serve honorably. While some members may be less mature than others, the NDRB does not view a member’s claim of immaturity to be a mitigating factor or a sufficient reason for misconduct. In the Applicant’s case, the command originally opted to pursue the more lenient nonjudicial punishment with retention in order to correct the Applicant’s minor misconduct and to afford him a chan c e to take corrective action and complete his service obligation honorably . The Applicant, n ot be ing discharged at this point, chose to absent himself from his assigned unit for a period of 163 days. The Applicant was apprehended by civilian authorities and was returned to military custody. Upon the Applicant’ s return , he was ordered to pre-trial confinement, pending trial by S pecial C ourt -M artial. The r eferral of charges to trial by S pecial C ourt -M artial was proper, was within the Command’s authority, and was consistent with service norms for a period of absence this l ong.

The Applicant contends his post-service conduct warrants consideration for an upgrade to General (Under Honorable Conditions) . The NDRB considers 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. Besides the Applicant’s statement on the DD Form 293, he provided a copy of his college transcripts indicating that he had attained a Bachelors Degree from an accredited institution. The Applicant should be aware submission of these items alone does not guarantee an upgrade from an unfavorable discharge , as each discharge is reviewed by the NDRB on a case-by-case basis. The NDRB determined the Applicant ’s post-service documentary evidence , though positive, was not enough to establish a basis for relief.

The Applicant’s misconduct clearly documents a pattern of misconduct related to a general failure to conform to military rules and regulations as evidenced by his refusal to train and his extensive unauthorized absence - 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, coupled with the need to maintain good order and discipline of the service, the military judge determined that retention and rehabilitation was not warranted , and he awarded a punitive Bad Conduct Discharge. Aft er reviewing the Applicant’s issue s , the supporting documentation, and the evidence of record contained in the record of trial, the NDRB determined that the Applicant’s misconduct of record was conduct involving one or more acts or omission s that constitute d a significant departure from the conduct expected of members of the Naval Service . The misconduct of record warrant ed the awarding of a Bad Conduct Discharge . The NDRB discern ed no i nequity in the characterization of service and determined that clemency was not warranted. Accordingly, by a vote of 4-1 , the NDRB determined that the characterization of service and narrative reason for discharge shall not change.

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 found that clemency was not warranted. Therefore, the awarded characterization of service shall remain 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 | MD1100114

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