Upgrade.Vet

USMC | DRB | 2014_Marine | MD1400414

Original file (MD1400414.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20140113

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)       19820515 - 1982081 7     Active: 19820818 - 19860613 HON
                                    19860614 - 19891024 HON
                                    19891025 - 19940218 HON
                                    19940219 - 19980128 HON

Period of Service Under Review:
Date of Current Enlistment: 1998012 9     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20031021      H ighest Rank:
Length of Service : Y ea rs M on ths 22 D a ys
Education Level:        AFQT: 34
MOS: 8411
Fitness R eports:

Awards and Decorations (per DD 214):      Rifle Pistol MM (3) (5) CoC (2) (2) (3) (2) CoA ch (2) CoA pp (2)

Period of CONF :

Lost time per DD214: 20000502 - 2000604, 33 days

NJP:     SCM:              CC:

SPCM:

- 20000314 :       Art icle (Absence without leave , 19991208-19991213, 5 days )
         Art icle (Failure to obey order or regulation , did violate a lawful general regulation by wrongfully using for personal purposes a gas credit card and government vehicle issued for official F ederal government use only )
         Article 108 (Military property of the United States - l oss, damage, destruction, or wrongful disposition ; did, between, on, or about October 1999 to December 1999, without proper authority, disp ose of by delivering a credit card of some value, military property of the United States )
         Article 112a (Wrongful use, possession, etc., of controlled substances , 2 specifications )
         Specification 1: Wrongfully use Cocaine on or about 19991204 and 19991214
         Specification 2: Wrongfully use Marijuana on or about 19991204 and 19991214
         Article 121 (Larceny and wrongful appropriation , 2 specification s)
         Specification 1: D id, on or about 08 December 1999, steal a Ford Aerostar Minivan, military property, of a value of more thatn $100.00, the property of the United States Federal Government)
         Specification 2: D id, between, on, or about October 1999 and December 1999, steal a credit card, military property, of some value, the property of the United States Federal Government)
         Sentence : CONF 1 month

Retention Warning Counseling :

- 19991012 :       For failure to abide by c ommand policies and disobeying lawful order. Specifically, you are required to use your assigned government vehicle for work - related driving only.

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 qualify for service - related medical benefits.
2.       The Applicant seeks clemency to enhance employment opportunities.
3 .       The Applicant contends his honorable service prior to his misconduct warrants an upgrade to Honorable.
4 .       The Applicant contends stress while on recruiting duty mitigates his misconduct.
5 .       The Applicant contends his post-service conduct warrants consideration for clemency.

Decision

Date : 20 1 4 0731         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 in his current enlistment included 6105 counseling warning and for of the UCMJ: Article 86 (Absence without leave), Article 92 (Failure to obey order or regulation), Article 108 (Military property of the United States - loss, damage, destruction, or wrongful disposition), Article 112a (Wrongful use, possession, etc., of controlled substances , cocaine and marijuana, 2 specifications), and Article 121 (Larceny and wrongful appropriation, 2 specifications). The Applicant’s service record documents a punitive conviction and punishment, as adjudged by a Special Court-Martial, on 14 March 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 reduction to the pay grade of E-3, forfeiture of $600 pay per month for four months, confinement for a period of one month , and a Bad Conduct Discharge. The C onvening A uthority approved the sentence as adjudged, but suspended all confinement for a period of one year pursuant to the terms of a pretrial agreement. The case was submitted for review to the U.S. Navy-Marine Corps Court of Criminal Appeals ; it was reviewed and the findings were affirmed on 30 May 2003 .

: (Nondecisional) The Applicant seeks clemency to qualify for service - related medical 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.

: (Nondecisional) The Applicant seeks clemency to enhance employment opportunities. The NDRB has no authority to grant clemency for the sole purpose of enhancing employment or educational opportunities.

: (Decisional) ( ) . The Applicant contends his honorable service prior to his misconduct warrant s an upgrade to Honorable. The Applicant received Honorable characterizations of service for his first four enlistments from August 1982 to January 1998. E ach period of enlistment is an independent obligation and characterization is determined for that specific period of time. In his fifth enlistment, he received a retention warning and was convicted at a Special Court-Martial of numerous UCMJ violations. Based on the Applicant’s record of service in his fifth enlistment , the NDRB determined he warranted a punitive Bad Conduct Discharge, and his previous Honorable service does not warrant clemency in his fifth enlistment. Relief denied.

4 : (Decisional) ( ) . The Applicant contends stress while on recruiting duty mitigates his misconduct. The Applicant contends that he should have been removed from recruiting duty, given proper medical treatment, and returned to the Fleet Marine Force . The NDRB recognizes that serving in the military is challenging. Most servicemembers, however, serve honorably and therefore earn their Honorable discharges. There is no evidence in the record, nor did the Applicant provide any documentation, to indicate he attempted to use the numerous services available for servicemembers who undergo personal problems during their enlistment s . While the Applicant may feel the stress of recruiting duty was a contributing factor to his misconduct, it does 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. Relief denied.

5 : (Decisional) ( ) . The Applicant contends his post-service conduct warrants consideration for 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. Besides the Applicant’s statement on the DD Form 293, he failed to provide any documentary evidence on his behalf for post-service consideration. 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 an upgrade from an unfavorable discharge 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. Without post-service documentary evidence, the Board determined the awarded characterization of service shall remain Bad Conduct Discharge. Relief 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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USMC | DRB | 2014_Marine | MD1400414

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