Upgrade.Vet

USMC | DRB | 2014_Marine | MD1400083

Original file (MD1400083.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20131029

Characterization of Service Received:

Narrative Reason for Discharge:

Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to: HONORABLE, GENERAL (UNDER HONORABLE CONDITIONS), or UNCHARACTERIZED
         Narrative Reason change to:

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       19991124 - 20000723     Active:

Period of Service Under Review:
Date of Current Enlistment: 20000724     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20021029      H ighest Rank:
Length of Service : Y ea rs M on ths 06 D a ys
Education Level:        AFQT: 63
MOS: 9971
Proficiency/Conduct M arks (# of occasions): /          Fitness R eports:

Awards and Decorations (per DD 214):      Rifle

Periods of CONF : 20000928 - 20001211 (74 days)

NJP:     SCM:              CC:      Retention Warning Counseling :

SPCM:

- 20000928 :       Art icle (Absence without leave; did, on or about 0430, 09 August 2000, absent himself from his unit, to wit: First Recruit Training Battalion, Recruit Training Regiment, Parris Island, SC, and did so remain absent until on or about 2300, 09 August 2000)
         Art icle (Larceny; did, on or about 09 August 2000, steal a privately owned motor vehicle, of a value of more than $100.00)
         Sentence : (4 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 :

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1.       The Applicant seeks clemency based on mitigating factors that led to his misconduct.
2.       The Applicant seeks clemency based on his c ontention that a Bad Conduct Discharge is too harsh.
3.       The Applicant seeks clemency based on the honorable period he served from 07 February 2001 until his discharge on 2 9 October 2002.

Decision

Date: 20 1 4 0508          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 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 Special Court-Martial for violations of the UCMJ: Article 86 ( Absence without leave) and Article 121 (Larceny). The Applicant’s service record documents a punitive conviction and punishment, as adjudged b y a Special Court-Martial, on 28 September 2000. 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 Con duct Discharge, forfeiture of $4 00 pay per month for four months, and con finement for a period of 4 months . The C onvening A uthority approved the sentence as adjudged, but suspended all confinement in excess of 90 days in accordance with the terms of a pretrial agreement. The case was submitted for review to the U.S. Navy-Marine Corps Cou rt of Criminal Appeals ; it was reviewed and the findings were affirmed on 14 June 2001 .

: (Decisional) ( ) . The Applicant seeks clemency based on mitigating factors that led to his misconduct. The Applicant cited his concern for his mother’s health, combined with his adolescent decision making, as causes of his unauthorized absence and larceny. While the Applicant may feel that his family difficulties were a contributing factor to his misconduct, they do not mitigate his disobedience of the orders and directives that regulate good order and discipline in the Naval Service, demonstrating he was unsuitable for further service. Clemency denied.

: (Decisional) ( ) . The Applicant seeks clemency based on his contention that a Bad Conduct Discharge is too harsh. As evidence in support of this issue, the Applicant cites the comments of the dissenting member contained in the US Navy-Marine Corps Court of Criminal Appeals decision of 14 June 2001. The dissenting member voted to disapprove that part of the sentence extending to a B ad C onduct D ischarge based on his judgment that a B ad C onduct D ischarge was inappropriate ly severe. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB agreed that clemency was warranted in this case. By majority rule, the NDRB voted to upgrade the Applicant’s discharge to Under Other Than Honorable Conditions but not to change the narr ative reason for discharge, which shall remain Court-Martial. Clemency granted. Further clemency to Uncharacterized, General, or Honorable was not granted due to the serious nature of the offenses.

: (Decisional) ( ) . The Applicant seeks clemency based on the honorable period he served from 07 February 2001 until his discharge on 29 October 2012. After his Special Court-Martial conviction, the Applicant was placed on appellate leave and was not on active duty. The NDRB determined the Applicant’s good conduct during his appellate leave does not warra nt clemency. 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.

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 .

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 | 2014_Marine | MD1400083

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