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USMC | DRB | 2011_Marine | MD1101172
Original file (MD1101172.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110406
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)       19911004 - 19920427     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19920428     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19970326      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 02 D a y ( s )
Education Level:        AFQT: 35
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (3 RD ) ( 2 )

Periods of UA/ CONF : UA 19950503 - 10050518 (16 days)             UA 19951008 - 19951116 (39 days)

NJP:

- 1995052 4 :       Article (Absence without leave 0700, 19950503 to 0800, 19950519 ) , 16 days
         Awarded : (to E-3) Susp ended:

- 19950913 :       Article (Disrespect toward superior commissioned officer) , 19950906
         Article (Insubordinate conduct toward noncommissioned officer) , 19950906
         Awarded : Susp ended:

SPCM:

- 19951220 :       Art icle (Absence without leave , 19951018 - 19951116 ) , 28 days
         Art icle ( W illfully disobeying superior commissioned officer) , 19951121-19951122
         Sentence : CONF 175 days RIR (to E-1) FOP
         CA: Sentence approved and, except for the BCD, will be executed, but the part of the sentence extending to confinement will be suspended for 12 months from the date of trial, unless sooner vacated will be remitted without further action.

SCM:     CC:      Retention Warning Counseling :

Administrative Corrections to the Applicant’s DD 214

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

          “ COURT-MARTIAL ”
         “ (29) 9510 1 8-951116; (16) 950503-950519 ”
        
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 seeks a discharge upgrade to obtain veteran benefits.
2.       Applicant contends his discharge was too harsh when compared to his overall record of service.

Decision

 Date: 20 1 2 0 607            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 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 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 identif ied one decisional issue for the Board ’s consideration . The Applicant’s record of service did reflect for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave , 16 days, 0700, 3 May 1995 to 0800, 19 May 1995 ), Article 89 ( Disrespect toward superior commissioned officer , 0600 on 6 September 1995, Camp Bulkeley, Guantanamo Bay, Cuba, voiced “ Bullsh it ” to his Platoon Commander ), and Article 91 ( Insubordinate conduct toward warrant officer, noncommissioned officer , or petty officer, 0550 on 6 September 1995, Camp Bulkeley, Guantanamo Bay, Cuba , failed to get out of his rack and prepare for PT when told to do so numerous times by his NCO ) . The record also revealed for of the UCMJ: Article 86 ( Absence without leave, 28 days, 18 October-16 November 1995 ) and Article 91 (Assaulting or willfully disobeying superior commissioned officer , two occasions occurring between 21-22 November 1995, failed to draw his weapon and report to formation as directed and failed to draw his weapon and report to the armory as directed) . Based on the UCMJ Article 86 and Article 90 offenses committed by the Applicant, his command filed charges and scheduled adjudication via commanding officer NJP. However, when notified of his rights, he elected to refuse NJP and request trial by court-martial. The Applicant received trial by S pecial C ourt- M artial on 24 May 1995 and was found guilty of violation of UCMJ Articles 86 and 90. He was sentenced to forfeiture of pay, confinement for 175 days, reduction in rank to E-1 , and a B ad C onduct D ischarge. On 20 September 1996, the Navy Marine Corps Court of Criminal Appeals reviewed the Applicant’s record of trial and affirmed the court martial findings and sentence as adjudged by the Convening Authority. The Applicant was separated from the Marine Corps on 26 March 1997.

: (Nondecisional) The Applicant seeks a discharge upgrade to obtain veteran 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.
: (Decisional) ( ) . The Applicant contends his discharge was too harsh when compared to his overall record of service. The NDRB conducted a detailed review of the Applicant’s record. Within a four month period in 1995, the Applicant received two NJPs for violations of UCMJ Article 86 (Absence without leave, 16 days and 28 days), Article 89 (Disrespect to a superior commissioned officer), and Article 91 (Insubordinate conduct toward a noncommissioned officer). Three months after his second NJP, the Applicant stood trial by S pecial C ourt- M artial and was found guilty of violation of UCMJ Article 86 (Absence without leave , 28 days) and Article 90 (Willfully disobeying a superior commissioned officer). After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, court-martial findings, and the punitive d ischarge p rocess, t he Board determined that clemency was not warranted and the sentence awarded the Applicant at his court-martial was appropriate for the offense s he committed. Relief denied.
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 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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