Upgrade.Vet

USMC | DRB | 2013_Marine | MD1301301

Original file (MD1301301.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20130603

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)       20010615 - 200107 29     Active:

Period of Service Under Review:
Date of Current Enlistment: 20010730     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 200 71026      H ighest Rank:
Length of Service : Y ea r s M on ths 2 8 D a ys
Education Level:        AFQT: 57
MOS: 0451
Proficiency/Conduct Marks (# of occasions): 4.6 ( 9 ) / 2. 4 ( 12 ) Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle GWOTSM NDSM GCM SSDR (2) GWOTEM COC

NJP: NONE        SCM: NONE         CC: NONE         Retention Warning Counseling: NONE

SPCM: 1

- 20051004 :      Article 86 (Absence without leave , 2 specifications )
         Specification 1: 20040914 - 20050421, 221 days
         Specification 2: 20050523 - 20050621, 29 days
         Article 123a (Making, drawing, or uttering check, draft, or order without sufficient funds , to wit: funds totaling $27,927.28 )
         Sentence : RIR E-1 FOP CONF 11 MONTHS BCD [Pretrial agreement provided confinement in excess of 180 days be suspended for 12 months]

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 seeks Department of Veterans Affairs ( VA ) benefits.
2.       The Applicant contends his in-service conduct warrants an upgrade.
3 .       The Applicant contends his misconduct consisted of only two justifiable isolated incidents .
4 .       The Applicant contends his concern for his daughter led to his misconduct.
5.       The Applicant contends Post-Traumatic Stress Disorder ( PTSD ) mitigates his misconduct.

Decision

Date: 20131219          Location: Washington D.C .         R epresentation : none

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

Discussion

As a result of the Applicant’s claim of PTSD, in accordance with U.S. Code, Title X, Section 1553 (d)(1), the Naval Discharge Review Board included a member who is a physician, clinical psychologist, or psychiatrist. In accordance with section 1553 (d)(2), the service secretary expedited a final decision and accorded the case sufficient priority to achieve an expedited resolution. The Applicant’s service record documents completion of a deployment to Kuwait and Iraq from February to August 200 3 , conducting combat service support operations in support of Operation IRAQI FREEDOM and a deployment to Djibouti, Africa from December 2003 to June 2004 in support of Operation ENDURING FREEDOM .

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 one S pecial C ourt- M artial for violations of the UCMJ: Article 86 (Absence without leave, 2 specifications : Specification 1: 20040914 - 20050421, 221 days , and Specification 2: 20050523 - 20050621, 29 days) and Article 123a (Making, drawing, or uttering check, draft, or order without sufficient funds, to wit: funds totaling $27,927.28). The Applicant’s service record documents a punitive conviction and punishment, as adjudged by a Special Court-Martial, on 04 October 2005 . 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, reduction in rank to E-1, forfeiture of pay, and confinement for a period of 11 months (pretrial agreement provided confinement in excess of 180 days be suspended for 12 months) . 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 13 November 2006 . Subsequently, the Navy Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed.

: (Nondecisional) The Applicant seeks VA 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.

Issues 2-3 : (Decisional) ( ) . The Applicant contends his in-service conduct warrants an upgrade , and his m isconduct consisted of only two justifiable isolated incidents. The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The record of trial clearly shows the Applicant pled guilty at S pecial C ourt- M artial to violating UCMJ Articles 86 and 123a , both of which warranted a punitive discharge despite his previous service . 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.

4: (Decisional) ( ) . The Applicant contends his concern for his daughter led to his misconduct. The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The record of trial clearly shows the Applicant pled guilty at S pecial C ourt- M artial to violating UCMJ Articles 86 and 123a and had the opportunity to bring forth his family situation as a mitigating factor at his Special Court-Martial . The record of trial clearly shows the Applicant stated that a defense of coercion or duress did not apply in his situation. The Applicant further stated that he had other means such as request mast to obtain leave or have the local police department intervene. Therefore, t he 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.

5: (Decisional) ( ) . The Applicant contends PTSD related to his combat service in Kuwait , deployment to Djibouti, Africa, and a stateside static line parachute jump training incident warrants clemency . The Applicant provided a competency - to - stand - trial evaluation that list ed a diagnosis of PTSD (Iraq). The Applicant, however, was found competent to stand trial and was convicted at a Special Court-Martial and awarded a punitive Bad Conduct Discharge. There is nothing in the record, nor did the Applicant provide convincing evidence, to show that he was either not responsible for his conduct or that he should not be he ld accountable for his actions. The NDRB determined PTSD did not mitigate his misconduct and further determined clemency is not warranted. Clemency denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, the record of trial by Special Court-Martial, and discharge process, the Board found that clemency was not warranted. 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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USMC | DRB | 2013_Marine | MD1301301

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