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USMC | DRB | 2013_Marine | MD1301796
Original file (MD1301796.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20130905
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)       20000317 - 20000829     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20000830     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20050114      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 15 D a y ( s )
Education Level:        AFQT: 53
MOS: 0121
Proficiency/Conduct M arks (# of occasions): /    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

NJP:

- 20030710 :       Article (Failure to obey order or regulation, operating a motor vehicle on a base suspended license)
         Awarded: Suspended: Vacated 20030924

SCM:     CC:

SPCM:

- 20040128 :       Art icle (Absence without leave, physical fitness formation at 0530, 20030912)
         Art icle (False official statement)
         Article 132 (Frauds against the United States)
         Article 134 (General A rticle, willfully and unlawfully alter public records on or about 20030908)
         Sentence : CONF 180 days (20040128-20040410, 73 days)

Retention Warning Counseling :

- 20010410 :       For violation of Article 86 (1): On or about 1830, 20010329 SNM was told to go to the 7 day store to get cleaning supplies and be back in 30 minutes. At 2240 SNM finally returned and said that he had gone out into town to purchase a vehicle and had not gone to get cleaning supplies. Violation of Article 91 (1): In that SNM was told that due to him not having a driver’s license that he was not to drive to attempt to purchase a vehicle. On or about 1830, 20010309 SNM did disobey that order by attempting to purchase a car out in town. He was unable to do so due to the fact that he does not have a driver’s license. Violation of Article 91 (2): In that SNM did on or about 1000, 20010330 after being counseled on the other two charges did walk away saying , “You have a f___ attitude problem , Corporal, I’m not going to take this s_” or words to that effect. Violation of Article 86 (2) : In that on or about 1307, 20010403 SNM did return from noon chow seven (7) minutes late. Violation of Article 86 (3): In that on or about 0658, 20010405 SNM did report to work thirteen minutes late. Violation of Article 86 (4): In that on or about 1812, 20010405 SNM did report to Barracks HP 505 field day formation twelve (12) minutes late.

- 20030714 :       For failure to adhere to regulation and the UCMJ, specifically , on 20030710 you were found guilty during Battalion Commander NJP for violating Article 92 of the UCMJ.

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 clemency to enhance employment and educational opportunities and to get service benefits .

Decision

Date : 20 1 4 0410            Location: Washington D.C .         R epresentation :

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

 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 warnings, for o f the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey order or regulation ) , and Special Court-Martial for violations o f the UCMJ: Article 86 ( Absence without leave ) , Article 107 ( False official statement ), Article 132 ( Frauds against the United States ), and Article 134 (General A rticle ) . The Applicant was awarded a Bad Conduct Discharge at his Special Court-Martial. Appeals and clemency requests to such discharges 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.

: (Nondecisional) The Applicant seeks clemency to enhance employment and educational opportunities and to get service benefits . The NDRB has no authority to grant clemency for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB’s review to a determination of whether clemency is warranted for a Bad Conduct Discharge. Furthermore, t he 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.
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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