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USMC | DRB | 2013_Marine | MD1301353
Original file (MD1301353.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20130612
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) : NONE         Active:   R 19900512 - 199 80511

Period of Service Under Review:
Date of Current Enlistment: 20010201     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080125      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 25 D a y ( s )
Education Level:        AFQT: 62
MOS: 0481
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (2)

Periods of CONF : 20021122-20021201

NJP:     CC:

SCM: 1  

- 20020522 :     Article (False official statements , 6 specifications )
         Article ( General Article: p ublic record: altering, concealing, rem oving, mutilating, obliterating , 2 specifications )
         Sentence:

SPCM:

- 20030520 :       Art icle (Drunken or reckless driving; did on or about 20021101, operate and was in actual physical control of a vehicle in a reckless manner by speeding up, slowing down , and racing with other vehicles in order to prevent vehicles from passing and /or passing other vehicles)
         Art icle (Larceny and wrongful appropriation; did on or about 20021101 steal U.S. Currency of some value of about 15.00, the property of Marine Federal Credit Union)
         Article (Assault; did on or about 20021101, unlawfully grasp a Lance Corporal and pull him from the driver’s seat of the Lance Corporal’s vehicle with his hands )
         Article (Disorderly conduct; was on or about 20021101, disorderly , which conduct was of a nature to bring discredit upon the armed forces)
         Sentence : (CA approved as adjudicated on 200 80118 )






Retention Warning Counseling :

- 20021002 :       For being recommended by competent medical authority to be administratively separated from the Marine Corps due to a physical condition, not a disability. Specifically, evaluated and treated for chronic recurring patellofemoral syndrome to the left knee with tendonitis since 20020823 with no improvements.

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 prior enlistment was honorable.
2.       The Applicant contends he has had no other problems and worked (and continues to work) in law enforcement at the time of the incident .
 3.       The Applicant contends the court process was unfair and unjust as he was punished more harshly due to his status as the junior Marine involved and his law enforcement background.
4.       The Applicant contends his post-service conduct is worthy of clemency .

Decision

Date: 20 1 4 0130            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 Board presumes regularity in the conduct of governmental 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 presu med by the NDRB to be established facts. The Applicant’s record of service included one 6105 retention warning, for of the UCMJ: Article 107 ( False official statements , 6 specifications ) and Article 134 (General A rticle, Public record: altering, concealing, removing, mutilating, obliterating , 2 specifications) and for of the UCMJ: Article 111 (Drunken or reckless driving, 1 specification), Article 121 (Larceny and wrongful appropriation, 1 specification), Article 128 (Assault, 1 specification), and Article 134 ( General A rticle, disorderly conduct , 1 specification ). On 07 May 2003 , the Applicant entered into a Pre-Trial Agreement with respect to his S pecial Court-Martial. Based on the Applicant ’ s guilty pleas, conviction , and sentence at a S pecial C ourt- M artial, he was discharged with a Bad Conduct Discharge. Subsequent to his Special Court-Martial conviction, the Applicant engaged in numerous requests for reconsideration due to assignment of error , appeals, and clemency , ultimately resulting in the final determination by the Navy-Marine Corps Court of Criminal Appeals that his Bad Conduct Discharge was proper .

: (Decisional) ( ) . The Applicant contends his prior enlistment was honorable. The Applicant received an Honorable discharge for his first enlistment from May 1990 to May 1998. Each period of enlistment is an independent obligation and characterization is determined for that specific period of time. During the Applicant’s second enlistment, he was found guilty at a Summary Court-Martial and a Special Court-Martial for violating numerous UCMJ articles and was sentenced to a punitive Bad Conduct Discharge. The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. 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.
: (Decisional) ( ) . The Applicant contends he has had no other problems and worked (and continues to work) in law enforcement at the time of the incident. Despite a servicemenber’s prior record of service, certain serious offenses warrant separation from the Marine Corps to maintain proper order and discipline. The Applicant was awarded his Bad Conduct D ischarge in accordance with his Pre-Trial Agreement . The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances. Clemency denied.




: (Decisional) ( ) . The Applicant contends the court process was unfair and unjust as he was punished more harshly due to his status as the junior Marine involved and his law enforcement background. . 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 c ase and affirmed the decision.

The Applicant points to the sentence of the other two Marines who he claims outranked him and did not receive punitive discharges. The Applicant was not convicted of the same offenses as these other individuals. The Applicant was found guilty of reckless driving and was the instigator of much of the additional criminal activity. The Applicant was the individual that drove the vehicle, followed the other car into the parking lot, and who dr agged the individual driving the car out of the vehicle. Additionally, the Applicant was the person who used the other driver’s ATM card to unlawfully purchase fuel. In claiming to be the junior Marine present , the Applicant fails to note that he had significant prior military and law enforcement service and was 31 years old at the time of the incident. Further, the Applicant’s junior status was the result of a previous S ummary Court-Martial conviction for false official statements and altering a public record. The Applicant’s record of service indicates he entered into a Pre-Trial Agreement in which he agreed to make several guilty pleas on 07 May 2003 in exchange for dropping several charges and leniency in his sentencing. Further, the Applicant’s record of service indicates the A pplicant was afforded and exercised ample opportunity to request reconsideration based on assignments of error, submit appeals, and request clemency. The NDRB found this issue to be without merit. Clemency denied.

4 : (Decisional) ( ) . The Applicant contends his post-service achievements as evidenced by his employment as a law enforcement officer, selection as employee of the month , selection as p olice o fficer of the year, community service with the elderly , college attendance , and advanced degrees warrant clemency. The NDRB is authorized to consider post-service factors in the re-characterization of a discharge. However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question. The Applicant provided a personal statement and documentation showing his Master of Science in Criminal Justice . The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum with the recognition that completion 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. T he NDRB determined clemency was not warranted based on post-service conduct. 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.


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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