Upgrade.Vet

USMC | DRB | 2011_Marine | MD1101139

Original file (MD1101139.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20110325

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)       19991123 - 19991227     Active: 19991228 - 20031227 HON

Period of Service Under Review:
Date of Current Enlistment: 20040601     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080709      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 09 D a y ( s )
Education Level:        AFQT: 81
MOS: 0311 /0411
Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle (2) LoA (2) AFRM

Periods of UA :    IHMA/ CONF 20050202 - 20050214 ( 1 3 days ) CONF 20050222 - 2005022 5 ( 4 days )
                  PRE-TRIAL 20050525 - 20060503 (344 days)

NJP:              SCM:     CC:      Retention Warning Counseling:

SPCM:

- 20060504 :      Article (Failure to obey order or regulation, wrongfully shipping a 9mm p istol and a fragmentation grenade o ut of the USCENTCOM AOR , for personal retention , 20050120 )
         Article (Larceny and wrongful appropriation, wrongfully appropriate a fragmentation grenade,
         property of US Government , 20050120 )
         Sentence Adjudged : , CONF 1 year (Pre-trial CONF: 20050525-20060503, 344 days) , RIR (to E-1)
C onvening A uthority Action : The sentence is approved and, except for the bad-conduct discharge, o rdered executed. The Military J udge credited 420 days pre-trial confinement.

Administrative Corrections to the Applicant’s DD 214

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

“ (13) 20050202-200 5 0214; (4) 20050222-20050225; (344) 20050525-20060503 ”

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:                  Other Documentation:
                  Additional Statements:
         From Applicant:          From/To Representation:          From/To Congress member:

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

1. The Applicant contends that unique facts and circumstances surrounding his discharge warrant consideration for clemency.

Decision

Date: 20 1 2 0530 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 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 punitive 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 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 particular case merited clemency. The Applicant identified one decisional issue for the NDRB’s consideration regard ing clemency .

The Applicant’s record of service documents one S pecial C ourt -M artial f or violations o f the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey an order or regulation, wrongfully shipped a 9mm semi-automatic handgun and a fragmentation grenade out of Iraq, on or about 20 January 2005 ) and Article 121 ( Larceny, wrongfully appropriated a fragmentation grenade, property of U . S . Government, on or about 20 January 2005 ) . Based on the serious nature of the offenses , coupled with the findings and recommendations of an Article 32 Investigation , the command referred him to trial by General C ourt - M artial. While in pre-trial confinement, the Applicant proffered a Pre-Trial Agreement wherein he agreed to plead guilty to the charges as specified in the agreement in trial by military judge alone; in exchange, the C onvening A uthority agreed to adjudicate the charges at trial by Special Court - Martial with the inherent sentence limitations of the lower court . The Applicant was found guilty of violating UCMJ Articles 92 and 121 and sentenced to a reduction in rank to E-1, confinement for 12 months (420 days credit given for time already served), and a B ad C onduct D ischarge. Upon completion of the appellate review and appeal process es with the Navy Marine Corps Court of Criminal Appeals and the United States Court of Appeals for the Armed Forces , t he Applicant was discharged. T he Applicant then submitted a request for review of his discharge to the Naval Discharge Review Board (NDRB). On 22 July 2010, the NDRB conducted a documentary review of the Applicant’s case , found that clemency was warranted , and directed a change to Under O ther Than Honorable Conditions.

: (Decisional) ( ) . The Applicant contends the unique facts and circums tances surrounding his discharge, including his post-service diagnosis of Bi- P olar D isorder warrant consideration for clemency. The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited additional clemency. After a thorough review of the available evidence, to include the Applicant’s service records, the record of trial by S pecial C ourt -M artial, the punitive discharge process, a nd the extensive documentation and testimony submitted by the Applicant , t he NDRB found additional clemency was not warranted . T he punitive discharge , as awarded the Applicant at his trial by court-martial , which was then subsequently upgraded by the Naval Discharge Review Board from Bad Conduct Discharge to Under Other Than Honorable Conditions , is appropriate for the serious ness of the offense s he committed. Clemency denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service and record entries , the punitive discharge process and evidence and testimony submitted by the Applicant during the discharge review process , the NDRB found that additional Therefore, the awarded characterization of service shall UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain . 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 | MD1101139

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