Search Decisions

Decision Text

USMC | DRB | 2013_Marine | MD1301802
Original file (MD1301802.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20130920
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)       20010126 - 20010211     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20010212     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20060427      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 16 D a y ( s )
Education Level:        AFQT: 35
MOS: 0311/0341
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA : 20010905 - 20010909, 5 days; 20020107 - 2002051 6 , 127 days; 2003101 4 - 2003102 8 , 15 days;
20040415 - 20040420, 6 days; 20040624 - 20050313 , 256 days
 CONF : 20031223 - 20040115, 24 days; 20050313, 1 day; 20050315 - 20050 513 , 60 days

NJP:

- 20020618 :      Article 86 [corrected] (Absence without leave , 20020107 - 20020516, 127 days )
         Awarded: Suspended:

- 20030211 :       Article (Absence without leave , failed to secure from liberty at 1245 on 20030208)
         Article (Larceny and wrongful appropriation, wrongfully appropriated 3 packs of AA batteries, 2 rolls of dip, and 1 bottle of aftershave from the Guam Nav y Exchange)
         Awarded: 60 days Suspended: 30 days

SCM:

- 20031223 :       Art icle 86 (Absence without leave , 2 specifications )
         Specifications 1: 20031014 - 20031028
          Specification 2: 20031124, 0645 to 1030
         Art icle 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer)
          Sentence :

SPCM:

- 2005 0415 :       Art icle 86 (Absence without leave, 20040624 - 20050313 , 256 days )
         Sentence : 75 days

CC:

Retention Warning Counseling :

- 20020620 :       For Article 86 [corrected] violation

- 20030202 :       For Article 121 violation

- 20031020 :       For Article 86, unauthorized absence on or about 20030821 - 20030822

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.


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 the military judge recommended not to award the Bad Conduct Discharge but the Convening Authority disagreed.
3 .       The Applicant contends he served honorably during combat tours in Iraq and Djibouti.
 4 .       The Applicant contends diagnosed depression and alcohol dependence mitigate his misconduct.

Decision

 Date: 20140320            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 discharg e 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 warnings, for o f the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave , 2 specifications) and Article 121 (Larceny and wrongful appropriation) , Summary Court-Martial for of the UCMJ: Article 86 (Absence without leave, 2 specifications) and Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer) , and for of the UCMJ: Article 86 (Absence without leave). The Applicant was convicted at a S pecial Court-Martial where the m ilitary j udge recommended that the Convening Authority suspend the punitive discharge. However, the Convening Authority did not suspend the punitive discharge , and the Applicant was discharged with a Bad Conduct D ischarge.
: (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.
Issue 2: (Decisional) (Clemency) RELIEF NOT WARRANTED. The Applicant contends the military judge recommended not to award the Bad Conduct Discharge but the Convening Authority disagreed. The military judge’s recommendation is just that, a recommendation. The Convening Authority makes the final decision as to the sentence, and the NDRB found that no clemency is warranted after his conviction for being in an unauthorized absence status for 256 days. Relief denied.
Issue 3: (Decisional) (Clemency) RELIEF NOT WARRANTED. The Applicant contends he served honorably during combat tours in Iraq and Djibouti. During the Applicant’s 4 years and 2 months of service, he served in Iraq and Djibouti but also received three retention warnings and was found guilty at two NJPs, one Summary Court-Martial, and one Special Court-Martial of committing numerous UCMJ violations. After a complete review of the records and the Applicant’s statements, the NDRB determined he did not warrant clemency. Relief denied.






Issue 4: (Decisional) ( ) . The Applicant contends diagnosed depression and alcohol dependence mitigate his misconduct. The Applicant’s record of service demonstrated a persistent pattern of misconduct that included two extended periods of unauthorized absence (127 days and 256 days) and larceny. When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline. However, the NDRB does not consider the circumstances surrounding the Applicant’s stated condition or diagnosis to be of sufficient nature to excuse the Applicant’s misconduct. The NDRB determined his diagnosed depression and alcohol dependence did not mitigate his frequent misconduct. 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

Similar Decisions

  • USMC | DRB | 2009_Marine | MD0900066

    Original file (MD0900066.rtf) Auto-classification: Denied

    By a vote of the Narrative Reason shall MISCONDUCT.Discussion :().The Applicant contends he is entitled to a discharge upgrade because the punishment he received was too severe for his minor misconduct.In reviewing discharges, the Board 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. The Applicant appears to understand his administrative separation was part of the...

  • USMC | DRB | 2013_Marine | MD1301301

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

    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 held 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...

  • NAVY | DRB | 2007_Navy | ND0700388

    Original file (ND0700388.rtf) Auto-classification: Denied

    The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge.In reviewing discharges, the Board 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. ” Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided...

  • USMC | DRB | 2011_Marine | MD1101613

    Original file (MD1101613.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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/ToCongress member: Pertinent Regulation/Law A. Paragraph 6419, SEPARATION IN...

  • USMC | DRB | 2015_Marine | MD1401566

    Original file (MD1401566.rtf) Auto-classification: 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 remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain MISCONDUCT. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received...

  • USMC | DRB | 2010_Marine | MD1002081

    Original file (MD1002081.rtf) Auto-classification: Approved

    After carefully considering the Applicant’s record, as well as documentation submitted by the Applicant, the NDRB determined an upgrade to Honorable is warranted. ” 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. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing...

  • USMC | DRB | 2012_Marine | MD1200278

    Original file (MD1200278.rtf) Auto-classification: Denied

    The NDRB found no basis for which to grant clemency in this case. ” 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. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.

  • USMC | DRB | 2012_Marine | MD1201266

    Original file (MD1201266.rtf) Auto-classification: Denied

    The Applicant also acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 5 June 2002.Despite an Article 112a violation, which requires mandatory administrative processing, the Applicant’s command allowed him to finish his enlistment, and he was discharged at his End of Active Obligated Service with a General (Under Honorable Conditions) characterization of service.In accordance with Paragraph 1004 of the Marine Corps Separation and Retirement...

  • NAVY | DRB | 2012_Navy | ND1201563

    Original file (ND1201563.rtf) Auto-classification: Denied

    When notified of administrative separation processing using the procedure for Misconduct (Drug Abuse), Misconduct (Serious Offense), and Misconduct (Pattern of Misconduct), the Applicant rights to consult with a qualified counsel, submit a written statement, and request an administrative board. ” 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...

  • NAVY | DRB | 2009_Navy | ND0901847

    Original file (ND0901847.rtf) Auto-classification: Denied

    ” 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. 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), 2...