Upgrade.Vet

USMC | DRB | 2011_Marine | MD1100572

Original file (MD1100572.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20110104

Characterization of Service Received:

Narrative Reason for Discharge:

Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to: ENTRY LEVEL SEPARATION

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       20020619 - 20030602     Active:

Period of Service Under Review:
Date of Current Enlistment: 20030603     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20050812      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 10 D a y ( s )
Education Level:        AFQT: 51
MOS: 0300
Proficiency/Conduct M arks (# of occasions): 2.1 / 1.2    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

NJP:     SCM:              CC:      Retention Warning Counseling :

SPCM:

- 20040503 :       Art icle ( Absence without leave - absented himself from his unit, without authority, on 20030923 and did remain so absent until 20040330 ( 190 days) - absence terminated by apprehension by civilian law enforcement authorities)
         Sentence Adjudged : , 60 DAYS ( pre-trial confinement: 20040331-20040502 [ 33 days ], post-trial 20040503 - 20040517 [ 15 days ])
         C onvening Authority Action : ( 20050208 ) The s entence is approved and, except for the BCD, is ordered executed. The pre-trial agreement had no effect on the sentence as adjudged.

Administrative Corrections to the Applicant’s DD 214

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

         “ (190) 030923-040330, (33) 040331-040502 , (15) 20040503-20040517 ”

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 P1900.16F), 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 and a change to his reenlistment code (RE-Code) in order to facilitate reenlistment in the A rmed F orces.

Issue 2: Th e Applicant seeks a change to the characterization of his service at discharge to Uncharacterized with a change to the narrative reason for discharge to Entry Level Separation. The Applicant contends his characterization of service at discharge was inequitable : (1) his youth and immaturity at the time led to poor judgment and are mitigating factor s of his misconduct ; (2) personal circumstances, including the inability to adapt to the military lifestyle , family problems, and knowing that he had made a mistake in enlisting, led to the Applicant’s poor judgment and are mitigating factors to the misconduct of record.

Decision

Date: 20 1 2 0419 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 active military service at age 18 on a four year enlistment with a guaranteed contract of Infantry Option. The Applicant’s enlistment record reflects his entry into the military service without waiver to enlistment and induction standards. The Applicant satisfactorily completed Recruit Training 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 for violation s of the Uniform Code of Military Justice (UCMJ) or any retention-counseling warnings. However, the service record does reflect conviction by S pecial C ourt- M artial for violation of the UCMJ: Article 86 (Absence without leave - Absented himself from his unit, without proper authority, on 20030923 and remained so absent until 20040330). While absent from his unit (School of Infantry), the Applicant was dropped from his unit’s rol l s and was declared a Deserter . The Applicant was apprehend ed by local civilian law enforcement personnel and returned to military authority, terminating his absence. Upon return to military custody, the Applicant was placed in pre-trial confinement at the military consolidated b rig and char ges were referred for trial by S pecial C ourt -M artial for violation of Article 86 (absence greater than 30 days) of the UCMJ.

A qualified legal defense counsel represented the Applicant throughout his trial by Special Court-Martial. In accordance with a signed 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 discharg ed from the service, understanding that a Bad Conduct Discharge would be the result of that request . 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 12 August 2005 .

Issue 1: (Nondecisional ) The Applicant seeks clemency in the form of an upgrade in the characterization of his service at discharge and a change to his reenlistment code (RE-Code) in order to facilitate reenlistment in the A rmed F orces. 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. Moreover, t here is no requirement, or law, that grants re-characterization solely on the issue of facilitating reenlistment opportunities. 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. Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge. The NDRB is not authorized to change the reentry code as requested ; however, the Board for Correction of Naval Records can make changes to reenlistment codes. As such, t he Applicant may petition the Board for Correction of Naval Records using DD Form 149 regarding this issue. When requesting a change, the Applicant should provide as much documentation as possible to support the request for change. The address is: Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490. Further information is also available online at http://www.donhq.navy.mil/bcnr/bcnr.htm .

Issue 2: ( Decisional ) (Clemency) CLEMENCY WARRANTED (PARTIAL RELIEF) . The Applicant contends his youth and immaturity at the time led to poor judgment and are mitigating factors of his misconduct and personal circumstances, including the inability to adapt to the military lifestyle , family problems, and knowing that he had made a mistake in enlisting, led to the Applicant’s poor judgment and are mitigating factors to the misconduct of record. In review of punitive discharges, the NDRB is restricted to awarding clemency based on standards of equity only - matters of propriety are reviewed and are established by the appeal process in the military courts of appeal. As such, the NDRB conducted a thorough review of the Applicant’s discharge under the pertinent standards of equity to determine if any factors in this par ticular case merited clemency.

An Uncharacterized discharge and Entry Level Separation are warranted when separation is initiated while a member is within the first 180 days of continuous active duty , except when the characterization of service as Under Other Than Honorable Conditions is authorized , or Honorable is clearly warranted by presence of unusual circumstances involving personal conduct and performance, and is approved ( on a case-by-case basis ) by the Secretary of the Navy . The calculation of continuous active duty does not cease when a Marine absents himself from his unit ; though absent, he remains in a duty status. At the Applicant’s date of return to military authority (20040502), he ha d served on continuous active duty for a period of 335 days , well beyond the 180-day consideration for Entry Level S eparation and characterization . As such, the Applicant is not eligible for consideration of a n Uncharacterized discharge characterization nor separatio n under an Entry Level status.

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 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 factors or a sufficient reason for misconduct. The NDRB recognizes that serving in the military is challenging. Most service members, however, serve honorably and therefore earn their Honorable discharges. In fairness to those service members, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. The NDRB determined the Applicant’s personal problems were not mitigating factors in his misconduct. The Applicant’s misconduct clearly documents a failure to conform to military rules and regulations as evidenced by the extensive unauthorized absence . This was an act or omission that constituted a significant departure from the conduct expected of a member of the Naval Services. 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 awarded a punitive Bad Conduct Discharge , as sought by the Applicant. After reviewing the Applicant’s issues, the supporting documentation, the evidence of record as contained in the verbatim record of trial by S pecial C ourt -M artial, and the Applicant ’ s post-service conduct , to include a letter of character reference , the NDRB found that the Bad Conduct Discharge was overly harsh and did not conform to service norms . A ccordingly, the NDRB determined some form of clemency in this case was warranted. However, 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 misconduct. T he 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. As such, by a vote of 3-2, the NDRB awarded 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 for additional information.

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 | MD1100572

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