Upgrade.Vet

USMC | DRB | 2011_Marine | MD1102090

Original file (MD1102090.rtf) Auto-classification: Denied

ex-Pvt, USMC

Current Discharge and Applicant’s Request

Application Received: 20110907

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

Period of Service Under Review:
Date of Current Enlistment: 19940829     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19971007      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 10 D a y ( s )
Education Level:        AFQT: 75
MOS: 1341
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle , , , LoA

NJP:     SCM:

SPCM:

- 19960521 :       Art icle (Failure to obey lawful order or directive - 2 specifications)
         Article 111 (Drunken d riving)
         Article 121 (Larceny, wrongful appropriation with a value of more than $100.00)
         Article 134 (General Article, 2 specifications)
         Specification 1 - Wrongfully flee the scene of an accident
         Specification 2 - Drunk and disorderly
         Sentence : , CONF 180 days (960521 – 960924 (104 days)), ,

CC:

Retention Warning Counseling :

Types of Documents Submitted/reviewed
Related to Military Service:
         DD 214:          Service/ Medical Record:          Other Records:
                  Verbatim Record of Trial, Appellate Review
                  Parole and Clemency Review

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

Decisional issues : The Applicant contends that he received clemency and his discharge characterization of service on his DD Form 214 should reflect General (Under Honorable Conditions) .

Decision

Date: 20 1 1 0929 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 g overnment al a ffairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant identif ied one decisional issue to the NDRB . Additionally, the NDRB complete d a thorough review of the circumstances that led to his discharge and the discharge process to ensure the discharge met the pertinent standards of equity and propriety. The Applicant’s record of service includes one Special Court - Martial for violation of a rticles of the Uniform Code of Military Justice (UCMJ) , s pecifically, failure to obey lawful orders or directives, driving under the influence of alcohol, l arceny (wrongful appropriation with a value of more than $100.00), and fleeing the scene of an accident and being drunk and disorderly (Article s 92, 111, 121, and 134). On 21 May 1996 the sentence adjudged was to re d uce the Applicant to paygrade E-1; to be confined for a period of six months; and to be discharged from the U.S. Marine Corps with a Bad Conduct Discharge. The sentence was approved and, except for the Bad Conduct Discharge, was ordered executed. Confinement in excess of 120 days, however, was suspended for a period of 12 months. On 13 February 1997, the Navy-Marine Corps Court of Criminal Appeals reviewed and affirmed the decision. On 03 July 1997, the United States Court of Appeals for the Armed Forces accepted the Applicant’s case for a grant of review; on 23 September 1997, the petition for relief was denied by the Court of Appeals and the Bad Conduct Discharge was ordered executed. However, on 11 December 1996, the Naval Clemency and Parole Board reviewed the Applicant’s case for clemency and, in accordance with their authorities as provided by SECNAVINST 5815.3H, for the Secretary of the Navy, determined that the Applicant warranted clemency. Naval Clemency and Parole Board decision, Serial number MN11-97, as decided on 11 December 1996, granted the Applicant clemency to his sentence and directed that he be separated with a General (Under Honorable Conditions) discharge and that he be offered D epartment of Veterans Affairs treatment for drug/alcohol su bstance abuse rehabilitation.

By a vote of 5-0, the NDRB determined that the Applicant’s request for a change in his characterization of service at discharge to General (Under Honorable Conditions) was warranted. The NDRB noted that an administrative error on the Applicant’s DD Form 214 with regards to the character of service. Although the DD Form 214 stated the Applicant received a Bad C onduct D ischarge , he actually received clemency from the Secretary of the Navy and was awarded a General (Under Honorable Conditions) discharge per the Naval Clemency and Parole Board decision, Serial number MN11-97, decided 11 December 1996. The NDRB will recommend to the Commandant of the Marine Corps that the DD Form 214 be corrected as appr opriate.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, the verbatim transcript of the Special Court - Martial (to include all appeals and request for clemency) and the discharge process, the NDRB found the discharge was improper and that corrections were warranted. Therefore, the awarded characterization of service shall , however, t he 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 his 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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USMC | DRB | 2011_Marine | MD1102090

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