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USMC | DRB | 2011_Marine | MD1100676

Original file (MD1100676.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20110119

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)       19910308 - 19910827     Active:

Period of Service Under Review:
Date of Current Enlistment: 19910828     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19970410      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 28 D a y ( s )
Education Level:        AFQT: 33
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      (w/1 s tar) JMUC (Op Restore Hope-Somalia)

Periods of UA :

NJP:     SCM:              CC:

SPCM:

- 199 50207 :       Art icle 92 ( Willful d ereliction in the performance of duty, failing to safeguard and process mail matter s in the mail room as it was his duty to do )
         Article ( Larceny - Did s teal several compact disc s and Ebony magazines) [ Set Aside by Appellate Court Review]
         Article 134 ( Wrongfully open, secret, destroy and steal certain mail matters; to wit, packages containing c ompact disc s and Ebony magazines before being delivered )
         Sentence Adjudged : , , CONF 140 days (19950207-19950422, 74 days)
         C onvening A uthority Action : The se ntence is approved and, except for the bad conduct discharge, ordered executed, but the execution of that portion of the sentence adjudging confinement in excess of 90 days is suspended for a period of 12 months from the date of this action, at which time, unless sooner vacated, the suspended portion of the sentence will be remitted without further action.

Retention Warning Counseling :

- 19920718 :       For improper safe handling of an M9 9mm pistol , which resulted in a negligent discharge.

Types of Documents Submitted/reviewed

Related to Military Service:
         DD 214:          Service/ Medical Record:          Other Records:
                                             Verbatim Record of Trial Transcript
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 , 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, contend ing that his characterization of service at discharge was inequitable; his misconduct was the result of poor judgment and was an isolated incident in what was an otherwis e outstanding military career.

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, 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 provided no additional documentation for the NDRB’s consideration or to rebut the Government’s presumption of regularity .

The Applicant’s service record indicates he entered military service at age 1 9 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 with out waiver to enlistment and induction standards ; however, he received a Commanding General’s waiver for an undisclosed pre-service issue with a resulting retention counseling warning while undergoing Recruit Training. The highest rank achieved by the Applicant during his enlistment tenure was E- 3 / Lance Corporal . The Applicant’s record of service document s one r etention-counseling warning (CG MCRD retention / 9mm pistol negligent discharge). Additionally, the Applicant’s record of service documents disciplinary action taken through trial by Special Court - Martial for violation s of the U niform Code of Military Justice (UCMJ). Specifically, the Applicant was charged with violating Article 92 ( Willful d ereliction in the performance of his duties), Article 121 (Larceny), and Article 134 (General Article) as related to tampering with, opening, and stealing mail while assigned as the Battalion Postal Clerk. A qualified legal defense counsel represented the Applicant throughout the trial by Special Court-Martial process. In accordance with a signed P re- T rial A greement (PTA) , the Applicant requested trial by judge alone and pled guilty to the charges, 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, reduction in rank to E-1, and confinement for a period of 140 days. The Applicant served 74 days of the sentence before being released from confinement due to the sentence limitations contained within the pre-trial agreement (no confinement in excess of 90 days) and credit for good time served . The case was submitted for review with two assignment s of error to the U.S. Navy - Marine Corps Court of Criminal Appeals; it was reviewed and the findings of the court were affirmed on 19 April 1996 . However, the Appellate Court set aside the finding of guilt related to the charge of violating A rticle 121 (Larceny) as it was duplic ative of the more appropriate Article 134 charge that he was found guilty of. The Appellate Court re-evaluated the sentence in light of its findings and determined that the sentence, as awarded and approved, was not inappropriately severe given the remaining charges. 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.

Issue 1: ( Decisional ) (Clemency) CLEMENCY NOT WARRANTED. The Applicant contends that his misconduct was the result of poor judgment and was an isolated incident in what was an otherwise outstanding military career. 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; matters of propriety are decided and upheld through the appellant’s right to legal review process - t he Navy and Marine Corps Court of Criminal Appeals and the Court of Appeals of the Armed Forces. As such, ma t ters of propriety are not within the authority of the NDRB in relation to punishment as adjudged in a punitive trial by court - martial. The NDRB however, did conduct 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. 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 calculated misconduct. Despite a service member’s prior record of service, certain serious offenses, though isolated, warrant separation from the Naval Service in order to maintain good order , discipline , and morale . Violation of Article 92 and 134 are such offense s , carrying with them a possible punitive discharge and confinement for up to five years, if adjudicated at trial by General Court - Martial. Accordingly, these charges warrant processing for separation - regardless of grade, combat experience, or time in service.

Given the Applicant ’ s misconduct of record , coupled with the violation of the special trust and confidence conveyed to the Applicant to receive, process, and deliver Federal mail, and the need to ensure good order and discipline in the unit , the command opted to pursue adjudication and discharge through punitive court - martial instead of the more lenient administrative separation process. The Military Judge found the Applicant guilty of the offenses, as charged, based on the Applicant’s testimony and awarded him the Bad Conduct Discharge , reduction in grade to Private/E-1 , and confinement for 1 4 0 days. The violation of Article 121 was set aside upon appellate court review; however, the remaining findings and the sentence were affirmed. 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. Furthermore, the NDRB found the evidence of record did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offense s 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 and approved by the Convening Authority was equitable and was consistent with the characterization of discharge given others in similar circumstances. After a thorough review of the Applic ant’s record and issues submitted , the NDRB determined that clemency was not warranted and that the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed. Clemency 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 clemency was not warranted. Therefore, the awarded characterization of service shall BAD CONDUCT DISCHARGE and the narrative reason for separation shall remain . Since 15 years have elapsed since the date of his discharge, the Applicant is not eligible for a personal appearance hearing. The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm.

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 | MD1100676

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