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USMC | DRB | 2012_Marine | MD1201229
Original file (MD1201229.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20120508
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to: KDG1, HARDSHIP/VOLUNTARY DISCHARGE

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       20000128 - 20000221     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20000222     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20020426      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 05 D a y ( s )
Education Level:        AFQT: 62
MOS: 0300
Proficiency/Conduct M arks (# of occasions): /          Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

NJP:     SCM:              CC:

SPCM:

- 20000912 :       Art icle (Absence without leave terminated by apprehension , 20000705-20000816, 43 days)
         Sentence : 75 days (20000820-20000911, 23 days)

Retention Warning Counseling :

- 20000612 :       For violation of A rticle 86 , U nauthorized absence .

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 :        






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

Applicant’s Issues

 1.       The Applicant seeks clemency to enhance employment opportunities.
2.       The Applicant contends he warrants clemency, because his command neglected to treat his medical condition.
3.       The Applicant contends he warrants clemency, because he received poor legal representation at his court-martial.
4 .       The Applicant contends his post-service conduct and achievements are worthy of consideration for clemency .
5.       The Applicant contends the Naval Discharge Review Board (NDRB) upgraded former service members with similar cases.

Decision

 Date: 20 1 3 0301            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 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’s record of service included 6105 counseling warning and for of the UCMJ: Article 86 ( Absence without leave terminated by apprehension, 43 days ) . The Applicant’s service record documents a punitive conviction and punishment, as adjudged by a Special Court-Martial, on 12 September 2000. 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, forfeiture of $600 pay per month for two months, and confinement for a period of 75 days. The C onvening A uthority approved the sentence as adjudged, but suspended all confinement in excess of time served (27 days) in accordance with the terms of a pretrial agreement. 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 wer e affirmed on 25 January 2002.

: (Nondecisional) The Applicant seeks clemency to enhance employment 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.
: (Decisional) ( ) . The Applicant contends he warrants clemency, because his command neglected to treat his medical condition. Relevant and material facts as stated in a court-martial are presumed by the NDRB to be established facts. As such, matters of propriety for a punitive 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 c ase and affirmed the decision. The NDRB, however, did read the Applicant’s statements and documentation along with his service rec ords and record of trial . At his Special Court-Martial in response to a question from the Military Judge concerning the end of his first UA period, the Applicant responded, “I had returned by my own will on August 1st and was back to my company for just a matter of hours, and I decided that I liked the civilian life better and that I didn’t feel like I wanted to be in the Marine Corps anymore, ma’am. So I left again and went back home that same day, ma’am. ” Further in the record of trial, the Applicant stated, “I respectfully request to be granted a Bad Conduct Discharge. I am fully aware of the negative repercussions that come from obtaining a Bad Conduct Discharge. I just want to return home so I can be back in my family’s life once again and so that I may just put this all behind me…. I am sorry to say, even though graduating from boot camp was the greatest achievement in my life so far, the Marine Corps is not for me.” The NDRB determined clemency is not warranted. Clemency denied.

 Issue 3: (Decisional) (Clemency) RELIEF NOT WARRANTED. The Applicant contends he warrants clemency, because he received poor legal representation at his court-martial. A review of the records shows a document for the record signed by the Applicant that states, “Major P_, after reviewing my case with me, has informed me that in his professional opinion, requesting a Bad Conduct Discharge for the offense charged against me would not be in my best interest because of the nature of my case. Major P_ has also informed me that other alternatives may best serve me and would be less detrimental to my welfare, and has strongly advised me to pursue those alternatives rather than request a Bad Conduct Discharge. In spite of the advice and persuasion of Major P_, I am voluntarily requesting a Bad Conduct Discharge with the knowledge of the possible adverse effects that this decision may have upon my present and future welfare. In addition, I have instructed my defense counsel to present no matters in my behalf nor to argue anything at trial which would be inconsistent with my desire for a Bad Conduct Discharge.” Contrary to the Applicant’s statement to the NDRB, his record s reveal that he went against his counsel’s advice and pushed for a Bad Conduct Discharge. The NDRB determined clemency is not warranted for this issue. Clemency denied.

Issue 4: (Decisional) ( ) . The Applicant contends his post-service conduct and achievement s are worthy of consideration for clemency . The Applicant submitted four personal character references , four employer character references , a clean cr iminal history report from the S tate of Utah , a resume, and award certificates from ITT Technical Institute for High Honors and Perfect Attendance. C ompletion of these items alone does not guarantee clemency 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. After a complete review of the records and documentation submitted by the Applicant, the NDRB determined the Applicant’s post-service effor ts do not warrant clemency. Clemency denied.
Issue 5 : (Decisional) (Clemency) RELIEF NOT WARRANTED. The Applicant contends the NDRB upgraded three former service members with similar cases. The first case involved an Applicant who had documented Post-Traumatic Stress Disorder after a sexual assault. The second case involved a Marine whose commander decided to include him in the unit’s deployment to Iraq after he returned from a 141-day period of unauthorized absence. Over the course of two combat deployments, this Applicant was awarded the Navy and Marine Corps Commendation Medal with Combat Distinguishing Device for Valorous Service in combat actions against enemy forces and the Combat Action Ribbon and earned two Purple Hearts for wounds received in combat. The third case involved the misdiagnosis of a Personality Disorder. After a thorough review of the cases, the NDRB found no similarity to the Applicant’s misconduct and his request to receive a Bad Conduct Discharge. 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.

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 .


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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