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USMC | DRB | 2013_Marine | MD1300300
Original file (MD1300300.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20121127
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)       20061206 - 20070128     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20070129     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20120222      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 24 D a y ( s )
Education Level:        AFQT: 46
MOS: 0151/ 0111
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

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

Periods of UA :

NJP:

- 20100331 :      Article (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer)
         Article (Failure to obey order or regulation)
         Article 111 (Drunken of reckless operation of a vehicle, aircraft, or vessel )
          Awarded: Suspended:

- 20110211 :      Article (Failure to obey order or regulation , 2 specifications )
         Specification 1: Wearing an earring
         Specification 2: Wearing non-regulation sideburns and facial hair
         Awarded: Suspended:

SPCM:

- 20110314 :      Article 81 (Conspiracy)
         Article (Larceny and wrongful appropriation , 3 specifications )
         Specification 1: Steal approximately $2,200 from Navy Federal Credit Union checking account of PFC B_ on or about 20091113.
         Specification 2: Steal approximately $3,400 from Navy Federal Credit Union checking account of PFC D_ on or about 20091114.
         Specification 3: Steal approximately $975 from Navy Federal Credit Union checking account of PVT T_ on or about 20091119.
         Article 134 (General A rticle, transfer o r use, without authority, a mean of identification of another person to access and steal money from the Navy Federal Credit Union bank account of PFC B_, PFC D_, and PVT T_, U.S. Marine Corps.
         Sentence : CONF 12 months (20110314-20111204, 260 days)

Retention Warning Counseling:

- 20100331 :      For violation of Articles 91, 92 , and 111 of the UCMJ. Specifically , you disobeyed an order from your SNCO by not contacting him for assistance when you became drunk, disobeyed a base order by driving while impaired, drove your vehicle while drunk confirmed by a BAC of 17.

- 20110217 :      For your Company NJP on 20110217 for violation of Article 92x2 (failure to obey order or regulation). Specifically , photographs of you wearing an earring, non-regulation sideburns, and facial hair in direct violation of MCO P1020.34G while you were on leave from 20101230 -20110203.

SCM:     CC:

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:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

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 he did not commit violations that he ple d guilty to at a Special Court - Martial .
2. The Applicant contends his post-service co nduct is worthy of clemency .

Decision

Date: 20 1 3 1105            Location: Washington D.C .         R epresentation : DAV

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. 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 warnings, for o f the Uniform Code of Military Justice (UCMJ): Article 91 (Insubordinate conduct toward warrant, officer, noncommissioned office, or petty officer , specifically, not calling your senior non-commissioned officer for assistance when you became drunk ), Article 92 (Failure to obey order or regulation , specifically, disobeying a base order by driving impaired, wearing an earring, non-regulation sideburns and f acial hair ), Article 111 (Drunken or reckless driving , specifically driving your vehicle while drunk confirmed by a BAC of .17) , and for of the UCMJ: Article 81 ( Conspiracy) , Article 121 (Larceny and wrongful appropriation , specifically, stealing approximately $2,200.00 on 20091113, $3,400 on 20091114 and $975.00 on 20091119 from Navy Federal Credit Union) , and Article 134 (General Article) . The Applicant was convicted at a Special Court-Martial and awarded a Bad Conduct Discharge.

: ( D ecisional ) (Clemency) RELIEF NOT WARRANTED. The Applicant contends he did not commit violations that he ple d guilty to at a Special Court - Martial . The record of trial from the Special Court-Martial indicates the Applicant had legal representation and ple d guilty to violating UCMJ Articles 81, 121, and 134. T he record of trial goes into extensive detail showing the Applicant was well aware of the violations he pled guilty to committing. Relief denied.
: (Decisional) ( ) . The Applicant contends his post-service conduct is worthy of consideration. The Applicant presented documentary evidence of post-service education , personal awards , and employment that the board considered for clemency. In considering clemency, the NDRB looked at the violations of the UCMJ that the Applicant pled guilty to at Special Court-Martial, his two retention warnings, and his two NJPs, and weigh ed them accordingly against the post-service conduct provided by the A pplicant. 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 T herefore, the awarded characterization of service shall and the narrative reason for separation shall remain .
 The Applicant is not eligible for further reviews by the NDRB. The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm . 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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