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USMC | DRB | 2011_Marine | MD1100173
Original file (MD1100173.rtf) Auto-classification: Denied
ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20101026
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)       20010518 - 20010912     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20010913     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070201      H ighest Rank:
Length of Service : Y ea rs M on ths 20 D a ys
Education Level:        AFQT: 58
MOS: 3432
Proficiency/Conduct M arks (# of occasions): 3.7 (NFIR) / 3.8     (NFIR) Fitness R eports:

Awards and Decorations ( per DD 214):      GWOTSM , NDSM , NUC , MUC , COA (4)

NJP: 3

- 20040422 :      Article (Assaulting or willfully disobeying a superior commissioned officer)
         Article 92 (Failure to obey order or regulation , broke Military Protect ive Order)
         Awarded: RIR FOP RESTR EPD      Suspended:

- 20040727 :      Article 90 (Assaulting or willfully disobeying a superior commissioned officer)
         Article 134 (General Ar ticle, used Disbursing Office official P IN code authorization to make 206 personal phone calls , resulting in a charge of $82.35 to the government)
         Awarded : RIR FOP RESTR EPD      Susp ended: RIR

-20050412:       Article 86 ( Absence without leave, a bsented herself from her unit, without authority at 0630 on 20050301 , and did remain so absent until 1 900 on 20050304 ( 4 days) , absence terminated by su rrender to military authority.)
         Awarded: RIR                       Suspended: NONE
SCM: NONE         CC: NONE

SPCM: 1

- 20051020 :       Art icle 107 (False official statement, 2 specifications )
         Specification 1: M ade false official statement to investigator that she had no idea how forged checks belonging to a L ance C orpora l were deposited in her account
         Specification 2: Made false official statement to investigator that she had permission to open a Sprint phone services account in another’s name
          Art icle 121 (Larceny, stole personal checks from a L ance C orporal)
         Article 123 (Forgery, falsely make the signature of a L ance C orporal to certain checks, 11 specifications )
        
         Specification 1: Check no. 141, 20041222, $100.00
         Specification 2: Check no. 142, 20041230, $100.00
         Specification 3: Check no. 150, 20041231, $100.00
         Specification 4: Check no. 147, 20050110, $100.00
         Specification 5: Check no. 146, 20050131, $100.00
         Specification 6: Check no. 148, 20050204, $100.00
         Specification 7: Check no. 149, 20050204, $150.00
         Specification 8: Check no. 501, 20050212, $150.00
         Specification 9: Check no. 503, 20050214, $260.00
         Specification 10: Check no. 505, 20050215, $260.00
         Specification 11: Check no. 502, 20050219, $200.00
          Article 134 (General A rticle, 2 specifications )
         Specification 1: Falsely pretend to Sprint that she was someone else and obtained phone services of a value of about $440.12 by using another’s social security numbe r
         Specification 2: Dishonorably fail to pay the debt of $440.12 to Sprint; the debt she had incurred in another’s name
          Article 80 (Attempts, attempt to commit forgery by falsely making a check payable to herself in the amount of $100.00) - DISMISSED ON APPEAL by the Navy-Marine Corps Court of Criminal Appeals
         Sentence Adjudged : BCD, CONF 7 months (20051020 - 20060402, 163 days) FOP
         Convening Authority Action : The sentence is approved, and except for the Bad Conduct Discharge, is ordered executed. The Pre-Trial Agreement in place had no effect on sentencing.
         Court of Appeals Review - Decision dated 30 October 2006; the finding as to the Additional Charge I and its sole specification (Article 80 - Attempts) is set aside. The remaining findings are affirmed and the sentence has been reassessed; we find that the sentence continues to be appropriate for the remaining offenses and are correct in law and fact and no other error materially prejudicial to the rights of the appellant was committed.

Retention Warning Counseling : 3

- 20020508 :       For failure to go to the learning lab on 20020501 at 1800

- 20040803:      For willfully disobeying a superior commissioned officer and violation of Article 134
- 20050412 :       For absence without leave

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 clemency in the form of an upgrade in the characterization of h er service at discharge in order to facilitate reenlistment in the A rmed F orces.

Issue 2: The Applicant contends that her characterization of service at discharge was inequitable; h er youth and immaturity , coupled with personal problems at the time , led to poor judgment and are mitigating factor s to the misconduct of record.

Issue 3: The Applicant contends h er characterization of service at discharge was inequitable; the misconduct was an isolated incident in what was an otherwise outstanding military career.

Issue 4: The Applicant seeks clemency, contending that her command discriminated against her.

Decision

 Date: 20 1 20412           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. The Applicant submitted three issues related to the equity of her discharge for consideration in determining matters of clemency. 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. Accordingly, 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 t he Applicant’s legal rights.

The Applicant’s service record documents her entry into the military service at age 18 on a four-year enlistment contract under a Supply and Accounting Option guarantee for training . The record further reflects entry into military service with no wa ivers to enlistment and induction standards for pre-service criminal misconduct or failing to meet Marine Corps standards. The highest rank achieved by the Applicant during h er enlistment was E- 3 / Lance Corporal. The Applicant’s enlistment record documents three retention-counseling warnings and three nonjudicial punishments for violations of Articles of the Uniform Code of Milita ry Justice (UCMJ), specifically: A rticle 86 (Absence without leave) , Article 90 (Willfully disobeying a superior commissioned officer - the Commanding Officer) , Article 92 (Failure to obey lawful order or regulation) , and Article 134 (General Article). Additionally, the record documents that the Applicant was not recommended for promotion on numerous occasions for failure to abide by the established standards of the Marine Corps Body Composition P rogram (weight) and for failure of the Marine Corps Physical Fitness Test. The service record further documents a punitive conviction and punishment as adjudged by a S pecial C ourt -M artial on 20 October 2005 . The Applicant was subject to trial for violation of Article 1 07 (False o fficial s tatement , 2 specifications) , Article 121 (Larceny) , Article 123 (Forgery , 11 specifications) , and A rticle 134 (General Article , 2 specifications) . A qualified legal defense counsel represented the Applicant throughout her trial by Special Court-Martial. Given the facts of the case, the military trial judge awarded the Applicant a Bad Conduct Discharge, confinement for a period of seven months, and a forfeiture of monthly pay for seven months . The Applicant was tried in accordance with a signed Pre-Trial Agreement in which s he agreed to provide a stipulation of facts addressing each charge, to plead guilty , and to accept trial by judge alone . I n exchange, the Convening Authority agreed to leniency on matters of sentencing . The case was submitted for review to the U.S. Navy - Marine Corps Court of Criminal Appeals with one assignment of error - that the finding of guilty related to the charge and specification of Article 80 (Attempts) lacked the necessary evidence for a finding of guilt. T he case was reviewed and the f inding of guilt related to the charge was set aside ; t he remaining findings were affirmed. Because o f the actions of the Appellate C ourt decision, the Court reassessed the sentence without the set aside charge and found that the sentence continued to be appropriate for the remaining offenses , the offender , and no greater than that which would have been adjudged if the prejudicial error had not been committed. Accordingly, the sentence as approved by the convening authority was affirmed on 30 October 2006. Lacking any further appeal, the Navy Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed. The Applicant’s final discharge was executed on 01 February 2007.

Issue 1: ( Nondecisional ) The Applicant seeks a change in characterization of service at discharge to Honorable or General (Under Honorable Conditions) in order to facilitate re-enlistment into the Armed Forces . The NDRB has no jurisdiction or authority over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces and is furthermore, not authorized to change a reenlistment code - o nly the Board for Correction of Naval Records can make changes to reenlistment codes. Further information is available online at http://www.donhq.navy.mil/bcnr/bcnr.htm .
 Additionally, a request for a waiver may be submitted during the processing of a formal application for reenlistment through a recruiter; neither a less than fully honorable discharge, nor an unfavorable “ RE ” code is, in itself, a bar to reenlistment.

Issue 2: ( Decisional ) (Clemency/Equity) CLEMENCY NOT WARRANTED. The Applicant contends that her characterization of service at discharge was inequitable; her youth and immaturity, coupled with personal problems at the time, led to poor judgment and were mitigating factors to the misconduct of record. 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. Moreover, the NDRB recognizes that serving in the military is challenging , however, most service members serve honorably and therefore earn their H onorable or General discharges. In fairness to those service members, commanders and separation authorities are tasked to ensure that undeserving Sailors and Marines receive no higher characterization than is due. There is no evidence in the record, nor did the Applicant provide any documentation, to indicate she attempted to utilize the numerous services available for service members who undergo personal problems during their enlistment such as the Navy Chaplain, Mental Health professionals, Marine Corps Community Services, Navy Relief Society, or Family Advocacy Programs. The NDRB determined the Applicant’s youth, immaturity, and personal problems were not mitigating factors in h er deliberate misconduct; as such, relief in t he form of clemency is denied.

Issue 3: (Decisional) (Clemency/ Equity ) CLEMENCY NOT WARRANTED. The Applicant contends h er characterization of service at discharge was inequitable; the misconduct was an isolated incident in what was an otherwise outstanding military career. The evidence of record reflects that the Applicant had three nonjudicial punishments and four formal retention-counseling warnings , all prior to being referred to trial by S pecial C ourt -M artial for her theft and forgery of 11 checks from another Marine - which amounted to $1 , 680.00. This, coupled with using other Marines ’ personal information to open accounts in their names to fraudulent ly u s e services was conduct that could not be condoned and was especially egregious for a disbursing clerk who had special privileged access to Marines ’ personal information and pay and entitlements. Additionally, the Applicant had been counseled on numerous occasions for failing to maintain the Marine Corps height/weight standards and for failing the annual physical fitness test. Taken together, the NDRB determined that the Applicant’s misconduct was not an isolated incident, that the record clearly documented less than honorable service, and t hat no change was warranted. Relief denied.

Issue 4: (Decisional) (Clemency/Equity) CLEMENCY NOT WARRANTED. The Applicant contend s t hat her command discriminated against her . The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support h er issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that the command discriminated against her . The evidence of record does reflect poor performance of duties (weight control/PFT failure) , unacceptable conduct (3 nonjudicial punishments ) , a failure to take corrective actions after formal written retention-warning counseling (4 times) , and theft and fraud while in a position of special trust and confidence resulting in trial by S pecial C ourt- M artial. The Applicant’s statements alone do not overcome the government’s presumption of regularity. Relief denied .

The NDRB determined that the Applicant’s misconduct of record was conduct involving one or more acts or omission s that did constitute a significant departure from the conduct expected of members of the Naval Service ( disrespect, disobedience of lawful orders, theft, fraud, and unauthorized absence ). Furthermore, the NDRB found the evidence of record did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offense for which the discharge was awarded. Given the circumstances of the case, coupled with the nature of the misconduct and the standards and norms of the service, the NDRB determined that the punishment as awarded by the military trial judge was equitable and was consistent with the characterization of discharge given others in similar circumstances. Accordingly, the reason for discharge is most appropriate. After a thorough review of the Applicant’s record and the issues as submitted, the NDRB determined that clemency was not warranted and that the sentence awarded the Applicant at h er court-martial was appropriate . Accordingly, clem ency, as requested, is denied.
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 her 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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