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USMC | DRB | 2012_Marine | MD1200057
Original file (MD1200057.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20111003
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to: CONVENIENCE OF THE GOVERNMENT
        
Summary of Service

Prior Service:
Inactive:         NONE              Active:   19980129 - 20021002 HON

Period of Service Under Review:
Date of Current Enlistment: 20021003     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20060502      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 01 D a y ( s )
Education Level:        AFQT: 55
MOS: 6072
Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (3) CoC (Individual Award) CoC (Unit Award)

Periods of UA :

NJP:     SCM:              CC:      Retention Warning Counseling :

SPCM:

- 20040825 :       Art icle (Larceny and wrongful appropriation, steal Government property of a value of $500.00)
         Art icle (General A rticle, wrongfully receive stolen property of a value of less than $500.00)
         Sentence : 5 MONTHS

Administrative Corrections to the Applicant’s DD 214

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

          “ COURT-MARTIAL ”
         “ (125) 20040825-20041230 ”
        
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 Applicant contends his character of service prior to his misconduct and post-service warrants consideration.
2.       The Applicant contends his appointed USMC defense coun sel at his Special Court-Martial was ineffective.
2. The Applicant contends his sentence was disproportionate to the offenses.     

Decision

 Date : 20 1 2 1018            Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall .
Discussion

 The Applicant’s service record indicates he entered the service on 29 January 1998 and ended his first enlistment with a characterization of service of Honorable on 02 October 2002. The Applicant then reenlisted for a second enlistment beginning on 03 October 2002 for a period of four years. The Applicant’s DD Form 214 indicates he was separated from service on 02 May 2006 with a characterization of service of Bad Conduct Discharge with a narrative reason for separation of Court - Martial. The Applicant identif ied three decisional issue s to the Board on h is DD Form 293 . T he Board complete d a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included for of the UCMJ: Art icle (Larceny and wrongful appropriation, steal Government property of a value of less than $500.00) and Art icle (General A rticle, wrongfully receive stolen property of a value of less than $500.00) . He was sentenced to a Bad Conduct Discharge, five months confinement, and reduct ion in grade to Private (E-1).

: (Decisional) ( ) . The Applicant contends his character of service prior to his misconduct and post-service warrants consideration. The Applicant states his character is demonstrated by his first enlistment ’s Honorable characterization of service. Each period of enlistment , however, is an independent obligation and characterization is determined for that specific period of time. During his second enlistment, he was the subject of a Special Court-Martial and was awarded a B ad Conduct Discharge after a trial at which he was allowed to present all the evidence in his favor and submit mitigating evidence for consideration during sentencing. 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 submitted his DD Form 293 statement, his private representative’s petition, and records of college attendance for consideration. The NDRB reviewed all of the available records, supporting documents, facts, elements of discharge, evidence submitted by the Applicant, and circumstances unique to this case and determined that the Applicant’s case does not warrant clemency. Relief denied.

: (Decisional) ( ) . The Applicant contends his appointed USMC defense coun sel at his S pecial Court-Martial was ineffective. 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. The Applicant’s appellate rights statement and certification of his acknowledgment of those rights, which detail this process, are appended to the verbatim record of trial by court-martial. In the Applicant’s case, the Navy-Marine Corps Court of Criminal Appeals reviewed the case and affirmed the decision. As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief. Relief denied.





: (Decisional) ( ) . The Applicant contends his sentence w as disproportionate to the offenses. The Manual for Courts - Martial stipulates that the maximum punishment that can be awarded for violation of Article 121 ( Larceny and wrongful appropriation, steal Government property of a value of less than $500.00) is a Bad Conduct Discharge, one year confinement, reduction to E-1, and forfeiture of all pay and allowances. As the Applicant received a punishment of only five months confinement and no forfeitures of pay or allowances , his punishment was not unduly harsh or above the maximum. The Applicant was also found guilty o f Article 134 (General A rticle, wrongfully receive stolen property of a value of less than $500.00) for which he could have received a B ad Conduct Discharge, six months confinement, reduction to E-1, and forfeiture of all pay and allowances. As his sentence from the trial judge was for equal or less than the pre-trial agreement he had voluntarily and with advice of coun sel had entered, the Applicant’s contention that his punishment was too harsh is not supported by the evidence. As was the case for I ssue 2 , the Applicant had the right to an appellate review at which time he could have challenged his sentence. 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 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

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