Search Decisions

Decision Text

USMC | DRB | 2014_Marine | MD1400859
Original file (MD1400859.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20140401
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)       20080910 - 20080922     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20080923     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20131107      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 16 D a y ( s )
Education Level:        AFQT: 69
MOS: 3043
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

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

Time lost per DD Form 214: 20120908 - 20120906, 2 days ; 20120916 - 20120918, 3 days; 20121212 - 20121225, 14 days

NJP:

- 20110309 :       Article (Failure to obey order or regulation)
         Article (Drunken or reckless operation of vehicle or vessel, BAC 0.15%)
         Awarded: Suspended:

SCM:              CIVIL ARREST:                      CC:

SPCM:

- 20121212 :       Article 81 (Conspiracy, to steal a wallet containing 60,000 Yen, valued over $500)
         Article (Failure to obey order or regulation, wrongfully possessing 10 rounds of 5.56mm ammunition in his BEQ)
         Article 121 (Larceny and wrongful appropriation, steal a wallet containing 60,000 Yen, valued over $500)
         Article 134 (General A rticle , 2 specifications )
         Specification 1: Break restriction on or about 20120904 by consuming alcohol
         Specification 2: Break restriction on or about 20120904 by having visitors
         Sentence : 4 months

Retention Warning Counseling :

- 20110309 :       For your battalion level NJP held on 20110309 for violation of Articles 92 and 111.





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 he had ineffective counsel at his Special Court-Martial, and his offenses did not warrant a Bad Conduct Discharge.
3.       The Applicant contends his record of service warrants clemency.
4 .       The Applicant contends Post-Traumatic Stress Disorder ( PTSD ) could have clouded his judgment.
 5.       The Applicant contends he voluntarily entered alcohol rehabilitation after being discharged.
Decision

Date: 20140807   Location: Washington D.C . R epresentation :

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

 As a result of the Applicant’s claim of PTSD, in accordance with U.S. Code, Title X, Section 1553 (d)(1), the Naval Discharge Review Board included a member who is a physician, clinical psychologist, or psychiatrist. In accordance with section 1553 (d)(2), the service secretary expedited a final decision and accorded the case sufficient priority to achieve an expedited resolution. The Applicant’s service record documents completion of a deployment to Afghanistan from May to November 2009, conducting combat service support operations in support of Operation ENDURING FREEDOM.

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 g overnment al a ffairs 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 record of service included 6105 counseling warning , for o f the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation) and Article 111 (Drunken or reckless operation of vehicle or vessel, BAC 0.15%) , and Special Court-Martial for of the UCMJ: Article 81 (Conspiracy, to steal a wallet containing 60,000 Yen, valued over $500), Article 92 (Failure to obey order or regulation, wrongfully possessing 10 rounds of 5.56mm ammunition in his BEQ), Article 121 (Larceny and wrongful appropriation, steal a wallet containing 60,000 Yen, valued over $500), and Article 134 (General A rticle, 2 specifications : B reak restriction on or about 20120904 by consuming alcohol and Break restriction on or about 20120904 by having visitors ). The Applicant’s service record documents a punitive conviction and punishment, as adjudged by a Special Court-Martial, on 12 December 20 12 . 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 Conduct Discharge and confinement for a period of four months . 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 07 November 2 013 . Subsequently, the Navy Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed.

: (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 or clemency 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.




: ( D ecisional) (Clemency) RELIEF NOT WARRANTED. The Applicant contends he had ineffective counsel at his Special Court-Martial, and his offenses did not warrant a Bad Conduct Discharge. 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 case and affirmed the decision. The NDRB determined these contentions did not warrant clemency. Relief denied.

Issue 3: (Decisional) (Clemency) RELIEF NOT WARRANTED. The Applicant contends his record of service warrants clemency. During the Applicant’s enlistment, he deployed to Afghanistan, reached the rank of Corporal, was awarded a Navy Marine Corps Achievement Medal, had a retention warning, was found guilty at an NJP of violating UCMJ Articles 92 and 111, and was found guilty at a Special Court-Martial of violating UCMJ Articles 81, 92, 121, and 134. After a thorough review of the Applicant’s achievements, deployment, and misconduct, the NDRB determined clemency was not warranted. Relief denied.

Issue 4 : (Decisional) ( ) . The Applicant contends PTSD could have clouded his judgment. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. The NDRB requested all records of medical treatment, both active duty and post-service, from the VA. The records received from the VA failed to document any request for evaluation, any diagnosis, or any findings of PTSD. Moreover, the Applicant did not provide any evidence of a diagnosis of PTSD from any other private mental health treatment provider to document his claim. Though the Applicant may feel that PTSD was the underlying cause of his misconduct, the record reflects willful misconduct that demonstrated he was unfit for further service. The evidence of record did not show that the Applicant 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. Conspiracy, f ailure to obey order s or regulation s , l arceny and wrongful appropriation, and breaking restriction were all conscious decisions to violate the ten ets of honorable and faithful service. Relief denied.

Issue 5: (Decisional) (Clemency) RELIEF NOT WARRANTED. The Applicant contends he voluntarily entered alcohol rehabilitation after being discharged. 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 NDRB determined voluntarily entering post-service alcohol rehabilitation treatment does not warrant clemency. Relief denied.
Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, and discharge process, the Board found clemency was not warranted. Therefore, the awarded characterization of service shall remain BAD CONDUCT DISCHARGE and the narrative reason for separation shall remain COURT-MARTIAL.
The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his 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 | 2013_Marine | MD1301373

    Original file (MD1301373.rtf) Auto-classification: Denied

    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 discharge process, the Board found that clemency was not 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. ...

  • USMC | DRB | 2008_Marine | MD0801166

    Original file (MD0801166.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated to Military Service: DD 214: Service and/or Medical Record: Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Substance Abuse: Criminal Records: Family/Personal Status: Community Service: References: Additional Statements From Applicant: From Representation: From Member of Congress: Other Documentation (Describe) NDRB Documentary Review Conducted (date): The Board determined the...

  • USMC | DRB | 2010_Marine | MD1001946

    Original file (MD1001946.rtf) Auto-classification: Denied

    The NDRB determined the Applicant did not provide sufficient post-service documentary evidence to form a basis of relief. Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, the verbatim record of trial, and the discharge process, the NDRB determined that Therefore, the awarded characterization of service shall BAD CONDUCT DISCHARGE and the narrative reason for separation shall remain . ” Additional Reviews : After a...

  • USMC | DRB | 2006_Marine | MD0600696

    Original file (MD0600696.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and the Narrative Reason for Separation be changed to “ convenience of the government.” The Applicant requests a documentary record discharge review. B. M_, Jr, Colonel, Retired, U. S. Army, undatedApplicant’s DD Form 214 (Service 2) PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Inactive: USMCR (DEP) 20010420 -...

  • USMC | DRB | 2006_Marine | MD0600673

    Original file (MD0600673 .rtf) Auto-classification: Denied

    Record of service. BCD/DD authorized for offense(s) YES Acknowledged Consequences of OTH: YES 19910314 Type of Characterization Requested: UNDER OTHER THAN HONORABLECommanding Officer Recommendation (date): UNDER OTHER THAN HONORABLE SJA review (date): SUFFICIENT IN LAW AND FACT (19910321)Separation Authority (date): COMMANDING GENERAL, FIRST SERVICE SUPPORT GROUP (19910322) Reason for Discharge directed: SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL Characterization directed: UNDER OTHER...

  • USMC | DRB | 2010_Marine | MD1000015

    Original file (MD1000015.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. The NDRB found no other evidence in the Applicant’s medical or service records, nor did he provide any, to indicate PTSD was a mitigating factor in his misconduct to warrant consideration for an upgrade of his characterization.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, and medical record entries and discharge...

  • NAVY | DRB | 2004 Marine | MD04-01322

    Original file (MD04-01322.rtf) Auto-classification: Denied

    MD04-01322 Applicant’s Request The application for discharge review was received on 20040818. PART I - APPLICANT’S ISSUES AND DOCUMENTATION The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 86, unauthorized absence for more than 30 days.

  • NAVY | DRB | 2009_Navy | ND0901812

    Original file (ND0901812.rtf) Auto-classification: Denied

    On page 4, Item 8, in the instructions for completion of DD Form 293, the Applicant is notified to submit evidence "which substantiate or relate directly to your issues in Item 6" (Issues: Why an upgrade or change is requested and justification for the request). 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 BAD CONDUCT...

  • USMC | DRB | 2011_Marine | MD1101867

    Original file (MD1101867.rtf) Auto-classification: Denied

    Based on the Article 112a violation, processing for administrative separation is mandatory.The Applicant’s service record documents a punitive conviction and punishment, as adjudged by a Special Court-Martial, on 29 December 2005. 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...

  • NAVY | DRB | 2014_Navy | ND1400026

    Original file (ND1400026.rtf) Auto-classification: Denied

    Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entriesand 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. ” Additional Reviews : After a document review has been conducted, former members are...