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USMC | DRB | 2006_Marine | MD0600435
Original file (MD0600435.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-Pvt, USMC
Docket No. MD06-00435

Applicant ’s Request
The application for discharge review was received on 20060125 . The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions) . The Applicant requests a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area. The Applicant did not designate a representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20061130 . After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant ’s service was discovered by the NDRB. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain as a bad conduct discharge by reason of court-marital.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant ’s issues, as stated on the application:
“ My discharge should be upgraded because it is based on an incident that occured while I was in the Military Brigg. While in the military, I took the law into my own hands and got into a fight. As my punishment, I was sentenced to 60 days in the Military Brigg and was going to be discharged under “General/Under Honorable Conditions.” While incarcerated, my discharge was downgraded to “Bad Conduct” because of Marijuana residue that was found in my room.
 I believe that the discharge should upgraded due to the fact that it is based on two incidents from out of the latter part of my 4+ years of service. I have also been told that I could have the discharge upgraded when it has been two years since the incident, so that I can receive VA benefits, or at least not have the “Bad Conduct” discharge being a hindrance to employment opportunities. ”
Documentation
In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:
Applicant ’s DD Form 214 (Member 4 (2), State Director of Veterans Affairs - 6)
Applicant ’s certificate of completion of Total Customer Care from Roto-Rooter Services Company, Baltimore North, Baltimore South, Northern Virginia, dtd July 20, 2002
Applicant ’s performance appraisal from Roto-Rooter Services Company, dtd January 28, 2004 (4 pages)
 Applicant ’s performance appraisal from Roto-Rooter Services Company, dtd February 3, 2005 (7 pages)
 Applicant ’s criminal history record check from Criminal Justice Information System, Central Repository, Pikesville, MD, dtd March 23, 2006
 Applicant ’s application for criminal history record check, dtd March 16, 2006
 Seventy-s ix pages from Applicant ’s service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19950825 - 19960528       COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 19960529              Date of Discharge: 20030226

Length of Service (years, months, days):

 Active: 06 08 28 (Does not exclude lost time.)
          Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              81 day s

Age at Entry: 18
Years Contracted: 4
Education Level: 12                                 AFQT: 34

Highest Rank: LCpl                                   MOS: 3112

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.5 ( 9 )                                Conduct: 3.9 (9 )
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Rifle Marksman Badge, Navy and Marine Corps Overseas Ribbon(2), Meritorious Mast(2), Letter of Commendation.


Character, Narrative Reason, and Authority of Discharge (at time of issuance):

 BAD CONDUCT DISCHARGE/COURT-MARTIAL, authority: MARCORSEPMAN Par. 1105.

 Chronological Listing of Significant Service Events :

950824 :  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.
970617:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 120:
          Specification: Did, at Rm 410, Bldg 1210, Camp Kinser, Oki, Ja , d ur Mar 1997, commit carnal knowledge w/- T_ R. B_. Plea : Not in record . Findings : Guilty to charge and specification .
          Charge II: violation of the UCMJ, Article 134:
          Specification: Did, at Rm 410, Bldg 1210, Camp Kinser, Oki, Ja, dur Mar 1997, commit an indecent act w/- T_ R. B_, a female under 16 yrs. of age, not his wife. Plea : Not in record . Findings : Not guilty to charge and specification .
          Sentence: Forfeiture of $673.00, confinement for 30 das, reduction to E-2.
         CA action 970722: Sentence approved and ordered executed except for that portion of the sent pert to conft for 30 das, which will be susp for 3 mos fr the date of this act, at which time unless sooner vacated will be rem w/o further act.

 980526:  NJP for violation of UCMJ, Article 111:
         Specification: Did, on bd KAFB, Oki, Ja, on or abt 0313, 980412, opr a pov w/- a .08 BAC.
         Award: Forfeiture of $251 per month for 1 month, extra duty for 14 days. Not appealed.

 980817:  Counseled for deficiencies in performance and conduct ( Frequent involvement with military authorities and disobedience of a lawful order ). Necessary corrective actions explained, sources of assistance provided, discharge warning issued.
991022:  Counseled for deficiencies in performance and conduct (c onduct in a manner inappropriate to that of a Marine. Specifically, on 990922 when apprehended by Shore Patrol for disorderly conduct while on liberty). Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
001101:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of Dec, Yr 00 Qtr 4 because of pending general courts-martial.

001122:  Special Court Martial:
         Charge I: violation of the UCMJ, Article 81:
         Specification: On or abt 000506, conspire to commit an aggravated assault upon LCpl H_. Plea : Not guilty. Findings : Withdrawn.
         Charge II: violation of UMCJ, Article 128:
         Specification: On or abt 000506, commit an assault upon LCpl H_ with a dangerous weapon. Plea : Guilty. Findings : Guilty.
          Sentence: Confinement for 60 days , reduction to E-1.
          CA not in service record.

001122:  Applicant to confinement.
0012 07 :  Effective date of Applicant ’s reduction to E-1.
 [Extracted from SPCM Results of Trial.]

001229 :  Charge preferred against Applicant for violation of the Uniform Code of Military Justice (UCMJ) , Article 112a: Specification: In that Private S_ R_ M_( Applicant ), U.S. Marine Corps, on active duty, did, at an unknown location, on or about 001122, wrongfully use marijuana.

010104 :  Charge referred to special court-martial .

010107:  Applicant to pretrial confinement (36 days).
[Extracted from SJA’s recommendation dated 010713.]
010212 :  Special Court Martial
          Charge : violation of the UCMJ, Article 112a:
         Specification: Did, on or abt 001122, wrongfully use marijuana. Plea : Guilty. Findings : Guilty
         Sentence: Confinement for 45 days, Bad Conduct discharge.
          CA 0 10730 : T he sentence approved and , except for bad conduct discharge, ordered executed .
010212:  Applicant signed appellate rights statement.

 01022 7 :  Applicant ’s request for voluntary appellate leave is approved.

010229 :  Applicant to voluntary appel late leave.

 020208:  Applicant ’s appellate leave status changed to involuntary leave.

 020920 :  NMCCCA: Affirmed findings and sentence.

030115 :  Appellate review complete.

 030211 :  SSPCMO 03-240 : Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030226 with a bad conduct discharge which was the sentence adjudged by a properly convened special court-martial. That sentence was subsequently approved by both the convening and appellate review authorities (A and B). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the Applicant ’s issues were insufficient to merit clemency (C).

In response to the Applicant’s issue, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. 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. After a thorough review of the Applicant’s record, issues submitted, and post service accomplishments, the Board determined that clemency was not warranted and that the sentence awarded the Applicant at his court-martial was appropriate for the offense he committed. Contrary to the Applicant’s claim in this petition that his “discharge was downgraded to “Bad Conduct” because of Marijuana residue that was found in my room,” the record clearly reflects that the Applicant pled guilty and admitted, under oath, to knowingly and intentionally smoking marijuana. Relief denied.
The Applicant states that he was told that after 2 years he could have his discharge upgraded. There is no law or regulation that authorizes a discharge to be automatically upgraded after 2 years. A former service member has 15 years, from the date of discharge, to petition the Board for consideration of an upgrade. The Board does not automatically upgrade a discharge after 2 years, or any other set period of time. Relief denied.
The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. 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. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

The following is provided for the edification of the Applicant. There is no law or regulation which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities. The Applicant did submit some documentary evidence to show his post-service employment and a criminal records check. The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge. Relief denied.
The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the 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.

Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURT-MARTIAL , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 01 September 2001 until Present.

B. 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 112a , W rongful use, possession, etc., of controlled substances.

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 205(2), Jurisdictional Limitations Authority for Review of Discharges.

PART IV - INFORMATION FOR THE APPLICANT
If you believe that 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 . 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 ” .
The names, and votes of the members of the 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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