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USMC | DRB | 2011_Marine | MD1100818
Original file (MD1100818.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110208
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)       19960419 - 19960818     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19960819     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19981202      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 20 D a y ( s )
Education Level:        AFQT: 35
MOS: 0161
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Lost time per DD214:     UA 19970901 - 19970910 ( 9 days )           CONF 19980218 - 19980402 (45 days)

NJP:     SCM:              CC:

SPCM:

- 19980218 :       Art icle ( General Article, obtaining services under false pretenses, from AT&T of a value about $156, o/o 19970601 to 19970901)
         Art icle ( General Article, obtaining services under false pretenses, from AT&T of a value about $ 221.68 , o/o 19970601 to 19970901 )
         Sentence : CONF 90 days (19980218-19980403, 45 days) RIR (to E-1) . The military judge recommends that all forfeitures be suspended if the accused submits an allotment for all his pay and allowances to his daughter and fiancé.
         CA: The sentence is approved and, except for the bad conduct discharge, ordered executed, but the execution of that portion of the sentence adjudging 55 days is suspended for a period of twelve 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 :

- 19971210 :       For your disrespect shown toward a N on - C ommissioned O fficer in the performance of his duties on 19971202. This blatant disregard toward good order and discipline is another indicator of the type of misconduct you continue to have. Several section level counselings have failed to correct your negative attitude and / or misconduct.





Administrative Corrections to the Applicant’s DD 214

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

          “ COURT-MARTIAL ”
        
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 , 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.       Applicant contends his discharge was improper and should have been for medical reasons.

Decision

Date: 20 1 2 0426            Location: Washington D.C .         R epresentation :

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 g overnment al a ffairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. However, r elevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. 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 identif ied one decisional issue for the Board ’s consideration . T he Board complete d a thorough review of the circumstances that led to B ad C onduct D ischarge and the punitive discharge process to determine whether he warranted a discharge upgrade on the basis of clemency. The Applicant’s record of service included 6105 counseling retention warning and for of the o f the Uniform Code of Military Justice (UCMJ) : Article 134 ( General Article, 2 specifications: obtaining services under false pretenses, as another service member, from AT&T , of a value about $156, o/o 1 June-1 September 1997 ; and obtaining services under false pretenses, as another service member, from AT&T of a value about $221.68, o/o 1 June-1 September 1997 ) . Based on the offenses committed by the Applicant, his command referred him for trial by S pecial C ourt -M artial. Upon conclusion of the S pecial C ourt -M artial trial proceedings on 18 Feb ruary 1998, the Applicant was found guilty and sentenced with forfeiture of pay, 90 days confinement, a reduction in rank to E-1 and a B ad C onduct D ischarge. Upon completion and affirmation of the appellate review process, the Applicant was discharged from the Marine Corps on 2 Dec ember 1998 with a Bad Conduct Discharge.

: (Decisional) ( ) CLEMENCY WARRANTED . The Applicant contends his discharge was improper and should have been for medical reasons. T he NDRB note d that the Applicant’s medical records contained evaluations for the following complain t s /symptoms : chest pain (May 1997), head contusion and cervical strain as a result of being assaulted (August 1997), chronic dehydration (September 1997), dizziness (December 1997), left side rib pain (January 1998), left side chest pain and dehydration (January 1998), s ickle c ell trait conditions (January 1998) , and left side hip pain (March 1998) . After detailed analysis of the Applicant’s records, the NDRB could find no evidence of a disqualifying medical condition diagnosis or recommendation for determination of retention based on a specific medical condition (s) while in-service (via medical/physical evaluation board or administrative separation processing ) . W ith no evidence within the available records or evidence submitted by the Applicant to rebut the presumption of regularity in this case, the Board determined that the Applicant’s issue (contention that he should have been separated from service due to a medical condition) did not provide a basis for relief. However, after thorough review and deliberation on the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, and the punitive di scharge p rocess , the NDRB found that the Applicant’s discharge warranted partial relief based on the grounds of clemency as the severity of punishment was deemed to be more harsh than what is typically awarded for the misconduct committed by the Applicant . Therefore, the Applicant’s characterization of service will change to Under Other Than Honorable Conditions, however, the narrative reason for separation will remain Court-Martial. Further clemency to Honorable or General (Under Honorable Conditions) was not granted due to the serious and repetitive nature of the misconduct. Clemency warranted.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries and the punitive discharge process, the Board found Therefore, the awarded characterization of service shall 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 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), 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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