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USMC | DRB | 2007_Marine | MD0700609
Original file (MD0700609.rtf) Auto-classification: Denied
ex-, USMC
MD07-00609
Current Discharge and Applicant’s Request
Application Received: 20070403                              Characterization Received:
Narrative Reason: COURT-MARTIAL          Authority: MARCORSEPMAN 1105

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Clemency

Decision

 By a vote of the Characterization shall DISCHARGE .
 By a vote of the Narrative Reason shall COURT-MARTIAL.

Date: 20 071205             Location: Washington D.C.         Representation :

Discussion

Issue 1 ( Clemency ). 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. The Applicant contends that his discharge was not warranted by his offense and that the military judge did not look into his entire service record. The Board did not concur. The evidence of record demonstrates that the Applicant was ably defended during his court-martial and that relevant information concerning his service record was presented to the military judge. There is no reason to even consider the Applicant’s assertion that the military judge failed or neglected his duty in determining the appropriate sentence. The Applicant’s misconduct was serious, and oft repeated. After a thorough review of the Applicant’s record and issues submitted, the Board determined that clemency was not warranted and that the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed.

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. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries , Discharge Process and evidence submitted by the Applicant, t he Board found that

Summary of Service

 Prior Service:
 Inactive: USMCR (DEP)     19960626 - 19970615              Active:
Period of Service Under Review:
 Date of Enlistment: 19970615                                 Years Contracted :                 Date of Discharge: 20020426
Length of Service : 04 Yrs 10 Mths 12 D ys                            Lost Time : Days UA: Days Confine d :
Education Level:         Age at Enlistment:       AFQT: 52          MOS: 6046        Highest Rank:
Proficiency/Conduct marks (# of occasions):      4.5 ( 8 ) / 4.4 ( 8 )     Fitness reports :
Awards and Decorations ( per DD 214): Rifle , GCM

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

 19960626:        Applicant received enlistment waiver for pre-service drug use.

19960626:        Applicant certified understanding of Marine Corps policy on illegal drugs.

 19981007 :        MARCORSEPMAN 6105 counseling for lack of judgment, underage drinking and unauthorized liberty in Mexico on 19980926 resulting in injuries requiring medical attention .

20000727:        MARCORSEPMAN 6105 counseling for consum ing hard liquor in the barracks on 20000723 and neglect ing duties and responsibilities as an NCO by allowing personnel under the age of twenty-one to consume alcohol.

Discharge Process

 Charge(s) and Specification (s):
         Charge: Article 112a ( S pec) – Abt 20000705 use marijuana.
         Additional Charge: Article 112a (4 specs) – (1) Abt March 1998 use marijuana; (2) Abt September 1998 use marijuana; (3) Abt December 1998 use marijuana; (4) Divers occasions btwn February 1999 – June 2000 use marijuana.
Preferred: 20000913 and 20000919         Pretrial Agreement: 20001031     Court-martial: 20001010 and 20001120     
Findings: Guilty of Article(s) 112 a: Spec – use marijuana divers (5) occasions btwn September 1998 – 20000705
Sentence: BCD; Conf 90 days , RIR E-1      CA action: 20010801       NC&PB Action: NONE
Appellate Review Complete: 20020416       BCD ordered executed: 20020426 SSPCMCO No. 02-275 Discharged: 20020426

Types of Documents Submitted by Applicant and Considered By Board

 Related to Military Service:      Service and/or Medical Record:            Other Records:

Related to Post-Service Period:         
         Employment:                        Finances:                          Education:               
         Health/Medical Records:                   Substance Abuse:                           Criminal Records:       
         Family/Personal Status:                   Community Service:                References:              
        
Additional Statements From Applicant:    From Representative:             Other Documentation (Describe)

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. 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, Wrongful use, possession, etc., of controlled substances.

ADDENDUM: Information for the Applicant

 Complaint Procedures : 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 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 : Subsequent to a document review, former members are eligible for a personal appearance hearing, provi ded the 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. If a former member has been discharged for more than 15 years , has already been grante d a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

 Service Benefits: 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.
Employmen t / Educational Opportunities : 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 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 Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Additionally, the Board 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 subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, 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 “PTSD . ” Only the Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - 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 may 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.

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 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.

Board Membership: 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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