Search Decisions

Decision Text

USMC | DRB | 2011_Marine | MD1101330
Original file (MD1101330.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110428
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)       20001025 - 20001112     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20001113     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20040929      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 28 D a y ( s )
Education Level:        AFQT: 32
MOS: 3531
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

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

NJP:

- 20010502 :       Article (Failure to obey order or regulation - left the confines of Fort Leonard Wood Post )
         Awarded : Susp ended:

- 20020228 :       Article (Failure to obey order or regulation - consuming alcoholic beverages while under the legal age)
         Awarded : Susp ended:

- 20030520 :       Article (Absence without leave - UA 0515-0545, 20030514)
         Article (Failure to obey order or regulation - signing out to the gym and barrack s 5718 but instead went on liberty to Kadena Air Force Base with his girlfriend)
         Awarded : Susp ended:

SPCM:
- 20030806 :       Art icle (Larceny of military property, 3 specifications)
                  Specification 1: steal $1,200.00, the property of LCpl C., on or about 9 December 2002
                   Specification 2: steal $2,000.00, the property of LCpl C., on or about 9 December 2002
                  Specification 3* : steal (1) r eserve p arachute, (1) m odular s leeping s ystem, (1) b ivy c over, and (10) p adlocks, aggregate value over $500.00, the property of US Government, from about October 2001 to February 2002 , at Okinawa, Japan.
         * Not guilty, but guilty of the lesser-included offense of wrongful appropriation.
          Art icle (Forgery, 2 specifications)
                  Specification 1: falsely make the signature of LCpl C., as endorsement on a certain check, on or about 9 December 2002, at Okinawa, Japan.
                  Specification 2: falsely make the signature of LCpl C., as endorsement on a certain check, on or about 9 December 2002, at Okinawa, Japan.
         Sentence : CONF 5 months (20030806-20031211, 127 days)
         CA: The findings are approved as entered. The adjudged sentence is approved and, except for the bad-conduct discharge, ordered executed.

SCM:     CC:

Retention Warning Counseling :

- 20010502 :       For insubordinate conduct toward a Staff Non- C ommissioned Officer.

- 20020306 :       For underage drinking on or about 0415 on 20020217 at Camp Foster, Okinawa, Japan you violated a lawful order to wit: MCBJO 1600.1B, by consuming alcoholic beverages while under the legal age, this is your second incident within a 9 month period.

Administrative Corrections to the Applicant’s DD 214

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

          “ (127) 20030806-20031211 ”
        
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 P1900.16F), 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 502, Propriety and Para 503, Equity .




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

Applicant’s Issues

 1.       The Applican t seek s clemency and contends h is discharge was too harsh.
2.       The Applicant seeks clemency base d on the passage of time and post - service conduct .

Decision

 Date : 20 1 2 0710            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 Board did complete a thorough review of the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety . The Applicant’s record of se rvice included 6105 counseling warnings, for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave - UA 0515-0545, 20030514 ), Article 92 ( Failure to obey order or regulation , 3 specifications: [1] left the confines of Fort Leonard Wood Post ; [2] consuming alcoholic beverages while under the legal age; [3] signing out to the gym and barracks 5718 but instead went on liberty to Kadena Air Force Base with his girlfriend ) , and for of the UCMJ: Article 121 ( Larceny of military property, 3 specifications: [1] steal $1,200.00, the property of LCpl C., on or about 9 December 2002; [2] steal $2,000.00, the property of LCpl C., on or about 9 December 2002; [3] wrongful appropriate (1) reserve parachute, (1) modular sleeping system, (1) bivy cover, and (10) padlocks, aggregate value over $500.00, the property of US Government, from about October 2001 to February 2002, at Okinawa, Japan ) , and Article 123 ( Forgery, 2 specifications : [1] falsely make the signature of LCpl C., as endorsement on a certain check, on or about 9 December 2002, at Okinawa, Japan; [2] falsely make the signature of LCpl C., as endorsement on a certain check, on or about 9 December 2002, at Okinawa, Japan ) . The Applicant’s service record documents a punitive conviction and punishment, as adjudged by a Special Court-Martial, on 0 6 A ugust 200 3 . A qualified legal defense counsel represented the Applicant throughout the trial by Special Court-Martial process. Given the facts of the case, the Special Court-Martial awarded the Applicant a Bad Conduct Discharge and confinement for a period of 12 7 days. The case was submitted for review to the U.S. Navy-Marine Corps Court of Criminal Appeals without assignments of error; it was reviewed and the findings were affirmed on 15 June 2004 . Subsequently, the Navy Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed.

: (Decisional) ( ) . The Applicant seek s clemency and contends his discharge was too harsh. In accordance with Secretary of the Navy Instruction 5420.174D of 22 December 2004, relevant and material facts as stated in a court-martial are presumed by the NDRB to be established facts. As such, matters of propriety related to the conduct of a punitive court-martial (e.g., Special Court-Martial) are addressed through the appellate review process by the Navy-Marine Corps Court of Criminal Appeals or through further petitioning for a review by the Court of Appeals of the Armed Forces. In the Applicant’s case, the Navy-Marine Corps Court of Criminal Appeals reviewed the case and affirmed the decision. As for being too harsh, the NDRB determined that the punishment was completely in line with the frequency and serious level of misconduct conducted by the Applicant. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Marine Corps. Clemency denied.





: (Decisional) ( ) . The Applicant seeks clemency base d on the passage of time and post - service conduct. The NDRB considers 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 . However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question. The Applicant provided a personal statement and evidence of enrollment as a student at Universal Technical Institute . The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum , however, completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration. To warrant an upgrade, the Applicant’s post-service efforts need to be more encompassing. The Board determined that the documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration. Additionally, t he Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The NDRB found the evidence of record did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded. Clemency denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and 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), 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

Similar Decisions

  • USMC | DRB | 2003_Marine | MD03-00808

    Original file (MD03-00808.rtf) Auto-classification: Denied

    PART I - APPLICANT’S ISSUES AND DOCUMENTATION “(Equity Issue) Pursuant to 10 USC 874 (b) (UCMJ, Article 74) and in accordance with SECNAVINST 5420.174C, enclosure (1), paragraphs 2.24 and 9.3, this former member requests the Board’s clemency relief with up-grade of his characterization of service on the basis of his post-service conduct.” PART IV - INFORMATION FOR THE APPLICANT If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not...

  • USMC | DRB | 2003_Marine | MD03-01356

    Original file (MD03-01356.rtf) Auto-classification: Denied

    PART I - APPLICANT’S ISSUES AND DOCUMENTATION 950812: From confinement, to duty. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 134, false pretenses.

  • USMC | DRB | 2006_Marine | MD0600416

    Original file (MD0600416.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. I believe that my performance of duty demonstrates that as a Marine, my performance of duty to the Corp was in keeping with the award of an Honorable Character of Service discharge rating. I injured myself while performing my duties and not due to any actions on my part that could be characterized as anything other than Honorable.” Documentation In addition to the...

  • USMC | DRB | 2006_Marine | MD0600330

    Original file (MD0600330.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. ]950128: Counseling: Advised of deficiencies in performance and conduct (Found guilty at NJP on 950106 for Article 128. The Applicant admitted guilt to the following violations of the UCMJ, Article 134: Disobeying order to wit: soliciting a money pyramid.960507: SJA review determined the proceedings sufficient in law and fact.960510: GCMCA, Commanding General, 3d...

  • USMC | DRB | 2005_Marine | MD0500850

    Original file (MD0500850.rtf) Auto-classification: Denied

    Violation of UCMJ Article 91: Specification: In that Lance Corporal M_ (Applicant) with 3rd Intelligence Battalion, III MHG, III MEF, having received a lawful order from Sergeant T_, a noncommissioned officer, to report to Sgt J_, an order which it was his duty to obey, did on board Camp Hansen, willfully disobey the same. Charge I: violation of the UCMJ, Article 107 (2 Specs): Specification 1: In that Private D_ D. M_ (Applicant), U. S. Marine Corps, 3d Intelligence Battalion, III Marine...

  • USMC | DRB | 2002_Marine | MD02-00270

    Original file (MD02-00270.rtf) Auto-classification: Denied

    Issues, as submitted 1 (Equity Issue) Pursuant to 10 USC 874 (b) (UCMJ, Article 74) and in accordance with SECNAVINST 5420.174C, enclosure (1), paragraph 2.24 and 9.3, this former member requests the Board's clemency relief with up-grade of his characterization of service under honorable conditions on the basis of his post-service conduct. Documentation In addition to the service record, the following additional documentation, submitted by the applicant, was considered:Copies of DD Form 214...

  • USMC | DRB | 2005_Marine | MD0500926

    Original file (MD0500926.rtf) Auto-classification: Denied

    After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).The Applicant contends that his discharge was improper as his administrative separation was not part of the sentence adjudged at his special court-martial. As of this time, the Applicant has not provided any post-service documentation for the Board to consider relief on this basis.The Applicant remains eligible for...

  • USMC | DRB | 2002_Marine | MD02-01086

    Original file (MD02-01086.rtf) Auto-classification: Denied

    The Marine Corps. Documentation In addition to the service record, the following additional documentation, submitted by the applicant, was considered:Letter from Applicant, dated May 17, 0002 Response Letter from BCNR, dated May 7, 2002 Employment Reference Letter, dated April 3, 2002 McKenzie Tank Lines, INC Position Description, dated January 29, 2001 Copies of DD Form 214 (2) PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Active:...

  • USMC | DRB | 2012_Marine | MD1201429

    Original file (MD1201429.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and 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...

  • USMC | DRB | 2006_Marine | MD0600179

    Original file (MD0600179.rtf) Auto-classification: Denied

    MD06-00179 Applicant’s Request The application for discharge review was received on 20051101. I just feel that I deserve a chance to walk proud again.” Documentation In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:Letter from Applicant, dtd April 24, 2006 PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Inactive: USMCR (DEP) 19870225–19870909 COG Active: None Period of Service...