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USMC | DRB | 2011_Marine | MD1100777
Original file (MD1100777.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110203
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to: OR UNCHARACTERIZED
         Narrative Reason change to: CONVENIENCE OF THE GOVERNMENT

Summary of Service
Prior Service:
Inactive:         USMCR (DEP)       19960509 - 19960520     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19960521     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19980305      H ighest Rank:
Length of Service : Y ea r M on ths 00 D a ys
Education Level: 12      AFQT: 52
MOS: 0300
Proficiency/Conduct M arks (# of occasions): ( ) / 2.1 ( 2 )        Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle EX

Periods of UA / CONF :

NJP: NONE        SCM: NONE                  CC: NONE         Retention Warning Counseling : NONE

SPCM: 1

- 19961206 :       Art icle 86 (Absence without leave, UA, 19960915 - 19961029, 45 days)
         Sentence : CONF 22 days BCD

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 , Part V, Para 502, Propriety and Para 503, Equity .


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

 1.       The Applicant contends his discharge is inequitable , because the prosecutor alluded to his period of unauthorized absence as being over a year long instead of the actual 45 days .
2.       The Applicant contends his depression is a mitigating factor in his misconduct.
3.       The Applicant believes his post-service conduct is worthy of consideration.

Decision

 Date: 20 1 2 0503            Location: Washington D.C .         R epresentation : NONE

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall .
Discussion
The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted. In reviewing discharges, the Board 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 the Applicant ’ s clemency request, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. The Applicant ’ s case was considered under the pertinent standards of equity to determine if any factors in this pa rticular case merited clemency. The Applicant’s record of service included a special court-martial for violation of the Uni form Code of Military Justice: Article 86 (Absence without leave, 19960915 - 19961029, 45 days) . The Applicant was found guilty at special court-martial, confined, and following appellant review, awarded a Bad Conduct Discharge.

: (Decisional) ( ) . The Applicant contends his discharge is inequitable , because the prosecutor alluded to his period of unauthorized absence as being over a year long instead of the actual 45 days . After carefully examining the record, it appears the prosecuting attorney’s reference to an unauthorized absence (UA) period of over a year was a typographical error in the record. The charge sheet clearly shows a UA period of only 45 days. This error was noted in the appeal process. This error does not appear to have unduly caused the Applicant any further harm. Any UA in excess of 30 days warrants confinement and a Bad Conduct Discharge if adjudged at special court-martial. The NDRB found clemency for this issue would be inappropriate. Clemency denied.

: (Decisional) ( ) . The Applicant contends his depression is a mitigating factor in his misconduct , and his characterization of service is overly harsh . Medical records show the Applicant was diagnosed with adjustment disorder and depression while pending court-martial. The record also shows the Applicant had no other misconduct in the record, and his UA period ended when he surrendered to authorities. After careful consideration, and based on the Applicant’s lack of prior misconduct , surrender to authorities, and circumstances unique to this case, the NDRB determined a Bad Conduct Discharge to be overly harsh for the offense. The NDRB determined an Under Other Than Honorable Conditions characterization would have been more fitting at the time of separation. When combined with matters addressed in I ssue 3 , the NDRB determined clemency to be warranted , and the characterization of service will change to General ( Under Honorable Conditions ) . Clemency warranted.

: (Decisional) ( ) . The Applicant requested the NDRB consider post - service conduct as a basis to gain a more thorough understanding of performance and conduct during the period of service under review . The Applicant submitted documentation showing he has completed bachelors and master of science degrees and has been steadily employed as an engineer. The Applicant submitted financial documents showing his credit score is excellent and other documentation showing he is married and is very active in charitable organizations and community service . Additionally , he submitted clean driving records and a criminal background check. The NDRB found the Applicant’s post-service conduct to be outstanding and well documented. Therefore, the NDRB determined the Applicant’s misconduct of record was an aberration and not indicative of his overall character. Clemency is warranted, and the characterization of service will change to General ( Under Honorable Conditions ) with no change to the narrative reason for separat ion. Clemency warranted.

Full relief to Honorable was not granted, because the Applicant did commit a serious offense and was responsible for his actions and conduct. An Uncharacterized characterization of service is not applicable, because the Applicant served longer than 180 days on active duty. The narrative reason for separation will remain as Court-Martial since that is the reason that most accurately describes why the Applicant was discharged from the Marine Corps.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, and d ischarge p rocess, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall . 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, Automatic Upgrades, 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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