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USMC | DRB | 2011_Marine | MD1100243
Original file (MD1100243.rtf) Auto-classification: Denied
ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20101104
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)       19960110 - 19960630     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19960701     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19971118      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 05 D a y ( s )
Education Level:        AFQT: 54
MOS: 0300
Proficiency/Conduct M arks (# of occasions): /   Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

NJP:     SCM:              CC:

SPCM:

- 19970129 :       Art icle ( Absence without leave - U nauthorized A bsence , 2 specifications )
         Specification 1: Absent ed himself from his organization on 19961103 , without proper authority, and remained so absent, until 19961203 ( 3 1 days ) - absence was terminated by surrender.
         Specification 2: Absent ed himself from his organization from 19961215 until 19961216 ( 2 days )
         Adjudged Sentence : , C onfinement 44 days (Pre-trial C onfinement : 19961219-19910129 ( 44 days)
         C onvening A uthority Action : The s entence is approved and , except for the bad conduct discharge, is ordered executed.

Retention Warning Counseling :

- 19960912 :       For specifically, physically assaulting another member of your platoon while on fire watch

Administrative Corrections to the Applicant’s DD 214

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

          “ COURT-MARTIAL ”
         “ (31) 961103-961203, (02) 961215-961216, (44) 961216-970129 ”
        
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:                  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 P1900.16E), effective 18 August 1995 until 31 August 2001.

 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 , 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 employment opportunities.

Issue 2: 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.

Decision

 Date: 20 1 2 0412            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 . 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 entered military service at age 1 8 on a four year enlistment with a guaranteed contract of Infantry Option. The Applicant’s enlistment record reflects his entry into the military service with a waiver to enlistment and induction standards for pre-service illegal drug usage - marijuana. The Applicant satisfactorily completed four months of service before absenting himself from his unit; the remainder of his enlistment period was either in an unauthorized absence status, pending trial by court - martial, or on appellate leave, pending review of his punitive discharge. The Applicant’s record of service does not document any nonjudicial punishments (NJP) for violation s of the Uniform Code of Military Justice (UCMJ) or any retention-counseling warnings. However, the service record does contain a S pecial C ourt- M artial f or violation of the UCMJ: Article 86 (Absence without leave - Absented himself from his unit, without proper authority, on 19961102 and remained so absent until 19961203, wherein his absence was terminated through his surrender to military authority; total days absent - 30 days). The Applicant further absented himself from his unit again on 19961215 for two days of unauthorized absence. On the first day of the second period of unauthorized absence, the Applicant was dropped from his unit’s roles and was declared a Deserter; a DD Form 553 (Deserter/Absentee Wanted by the Armed Forces) was issued to Federal, State, and local law enforcement agencies seeking his apprehension and return to military custody. The Applicant surrendered himself to military authori ty, terminating his absence.

A qualified legal defense counsel represented the Applicant throughout his trial by Special Court-Martial. In accordance with a Pre- T rial Agreement (PTA), the Applicant pled guilty to the charge as specified before a trial by Military Judge alone. At the trial, the Applicant requested to be discharged with a Bad Conduct Discharge; he stipulated - in writing - that he had been fully advised of the possible adverse consequences in the civilian community, that he would be deprived of virtually all v eterans ’ benefits, and, that on advice of defense counsel, this was not in his best interest. Given the facts of the case and the Applicant ’ s testimony, the Military Judge found the Applicant guilty of the charges, as specified, and adjudged a Bad Conduct D ischarge. The case was submitted for review to the U.S. Navy - Marine Corps Court of Criminal Appeals without assignment of error; the case was reviewed and the findings and sentence were affirmed. Subsequently, the Navy Marine Corps Appellate Leave Activity order ed the Bad Conduct Discharge executed. Accordingly, the Applicant was discharged on 18 November 1997. The record of trial documents that the Applicant waived his right to a clemency review by th e Clemency and Parole Board.


Issue 1: (Nondecisional) The Applicant seeks clemency in the form of an upgrade in the characterization of his service at discharge in order to facilitate employment opportunities (USPS) . There is no requirement, or law, that grants re-characterization solely on the issue of facilitating employment opportunities. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities, reenlistment, or to facilitate access to Department of Veterans Affairs (VA) benefits. Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge. Moreover, in the case of a sentence adjudged by a court - martial, the NDRB is further limited to clemency based on matters regarding the equity of the 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 grant relief.

Issue 2: ( Decisional ) (Clemency/Equity) CLEMENCY 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 . The Applicant absented himself from his unit, twice, while undergoing initial military occupational specialty training. Upon the Applicant’s surrender to military custody, he was referred to trial by S pecial C ourt -M artial to adjudicate the multiple violations of the UCMJ. Referral 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. The NDRB recognizes that many of our service members are young at the time they enlist for service , however, most still manage to serve honorably. While we understand some members may be less mature than others, the NDRB does not view a member’s claim of youth and immaturity to be mitigating factor s or a sufficient reason for misconduct. 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 repetitive unauthorized absence s and were acts or omissions that constituted a significant departure from the conduct expected of a member of the Naval Service . Due to the Applicant’s refusal to conform to the expected conduct of a United States Marine, coupled with the need to maintain good order and discipline of the service, the military judge determined that retention and rehabilitation was not warranted; accordingly, he awarded a punitive Bad Conduct Discharge sought by the Applicant .

After reviewing the Applicant’s issue s , the supporting documentation, and the evidence of record as contained in the verbatim record of trial, 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 . The NDRB found that the Bad Conduct Discharge was overly harsh and did not conform to service norms; accordingly, the NDRB determined some form of clemency in this case was warranted. H owever, the NDRB considered the Applicant’s request for a change to a General (Under Honorable Conditions) discharge characterization of service to be inappropriate due to the nature of the in-service mis conduct. T he NDRB found that conduct such as that documented by the Applicant’ service record usually warrants nonjudicial punishment (summary court - martial or NJP) and an administrative discharge U nder Other Than Honorable Conditions. As such, b y a vote 3-2, the NDRB award ed clemency based on equitable grounds - the characterization of service at discharge shall change from Bad Conduct Discharge to Under Other Than Honorable Conditions. Partial relief provided.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, the verbatim record of trial by Special Court-Martial, and the discharge process, the NDRB determined that some form of clemency was warranted. Therefore, the awarded characterization of service shall UNDER OTHER THAN HONORABLE CONDITIONS, but 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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