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USMC | DRB | 2008_Marine | MD0800833
Original file (MD0800833.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080222
Characterization of Service Received:
Narrative Reason for Discharge: VOL DIS (IN LIEU OF TRIAL BY COURTS MARTIAL)
Authority for Discharge: MARCORSEPMAN

Applicant’s Request: Characterization change to:
                  Narrative Reason change to:

Summary of Service

Prior Service:
 Inactive: NONE                     Active:           19760407 - 19790406
                                                      19790407 - 19820407
                                                      19820408 - 19881006
                                                      19881007 - 19921002

Period of Service Under Review:
 Date of Enlistment: 19921003      Period of Enlistment : Years Months     Date of Discharge: 19950105
Length of Service: Years Months 03 D ays       Education Level:        Age at Enlistment:
AFQT: NFIR        MOS: 3043/5811/8531       Highest Rank:
Fitness Reports:
Awards and Decorations (per DD 214):     Pistol (5) MM (2) NUC (WITH 1 STAR) (WITH 1 STAR) LoA CoC (WITH 1 STAR)

Periods of UA/CONF: SCM: SPCM: CC:

NJP:
- 19940729 : Article 128 (Assault)
 Awarded: Letter of reprimand Suspended: Letter of reprimand

 6105 Counseling:
- 19940801 : For involvement in a domestic affair with family member.
Types of Documents Submitted/reviewed

 Related 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):

Previous ndrb document review decision

NDRB Documentary Review Conducted (date): 20001102
NDRB Documentary Review Docket Number: MD00-00248
NDRB Documentary Review Findings: Proper as issued and that no change is warranted.

Applicant Testified:

Previous ndrb document review decision (cont)

Applicant Available for Questions:
Witnesses: Observers:


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

Applicant’s Issues
1. Applicant was not mentally competent at time of discharge.
2. Punishment was too harsh and not equitable to similar cases.
3. Post service conduct is offered for mitigation.

Decision

 Date: 20081210            Location: Washington D.C.        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall . VOL DIS (IN LIEU OF TRIAL BY COURT- MARTIAL)
Discussion

 : ( ) RELIEF NOT WARRANTED. The Applicant claims during the months prior to his discharge he was not mentally competent due to his distress over the failure of his marriage. He states he used cocaine to lessen this pain and as a result, he did not fully comprehend his discharge proceedings. Additionally, he claims his command did not do enough to help him address his problems. 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. A thorough review of the Applicant’s records reveals only one document referring to his mental health status. It was a discharge report from the Naval Hospital Jacksonville, Florida for treatment in December 1994, the month before his discharge, for what appears to be suicidal ideations. The medical diagnosis states the Applicant suffers from adjustment disorder, marital problems, alcohol and substance abuse. While the Applicant may have been under stress on account of his upcoming disciplinary action and discharge, no where is there an indication the Applicant was suffering from depression and no medications were prescribed to treat his alleged depression. He is returned to full duty and directed to take advantage of command counseling and Veteran’s Administration treatment for his substance abuse issues.

On 16 December 1994, the Applicant requested separation in lieu of trial by court martial to the Commanding General, Marine Corps Logistics Base, Albany Ga. In this letter he acknowledgers his offense, admits guilt and states he fully understand all the elements and ramifications of this decision as explained by his defense counsel. If the Applicant were not mentally capable of signing this document, it would have been noted by his defense counsel. Additionally, no where is it documented where a qualified medical doctor determined the Applicant was medically incompetent to make or understand decisions or declared incompetent by a court of law.

 The Applicant claims his command knew of his problems and did nothing to assist him. A review of his records reveals in September 1994 his command referred him to Level III, a resident rehabilitation program, at Naval Station Mayport, Florida for assistance with his drinking and drug use. The Applicant arrived at the program under the influence of illegal drugs, so he was immediately removed from the program in accordance with USMC policy. He was given an opportunity to get treatment for his addiction problems, but because of his own conduct, he was unable to take full advantage of.

The NDRB advises the Applicant certain serious offenses warrant separation from the service in order to maintain proper order and discipline. Violation of Article 112a (Drug use) is one such offense requiring mandatory separation regardless of time in service or grade. Violations of this policy result in, at a minimum, mandatory processing for an administrative separation which usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The Applicant’s willful failure to uphold the standards of conduct of the USMC falls far short of what is expected from a Marine of his time in grade and time in service. The Board determined the awarded discharge was appropriate and an upgrade based on the Applicant not being mentally competent would be inappropriate.

: ( ) . The Applicant feels his punishment was too harsh because he states he has seen other cases, to include officers, who have committed the same offenses (unauthorized absence and the use of illegal drugs), but they were allowed to stay on active duty. 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. In looking at equity issues in a case, the Board cannot rely on hearsay. While it may appear to the outside observer one case is similar to another and punishment is inequitable, commanding officers and when applicable, courts of law, review each case on individual merit. They make decisions based on the facts, circumstances and issues presented for mitigation. While adjudicators attempt to make equitable decisions, no two cases are identical and thus the decision cannot be predicted. Since the Applicant provided no supporting documentation or witness’ statements to support his allegations, the Board determined the awarded discharge characterization was appropriate for this case and an upgrade based on what may have occurred concerning other cases would be inappropriate.

: ( ) . The Applicant offers his post service conduct as mitigation for his upgrade request. He is married for the third time, is an associate pastor and very active in his church, has lived a drug free life for many years and does extensive volunteer work. The Board is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service. 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. The key word here is “Outstanding. The Board is looking for actions that go beyond simply daily living .

Documentation to help support a post service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage certificate; 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; 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 previous in-service misconduct was an aberration and not indicative of the member’s overall character.

Although the Applicant’s verbal testimony extensively outlined his post service activities, he failed to provide the Board any documentation to support his claims. In fairness to all petitioners, the Board must hold everyone to the same requirement. Since the Applicant did not provide any post service documentation, the Board determined an upgrade at this time is not warranted.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record, Discharge Process and evidence submitted by the Applicant, the Board found

Pertinent Regulation/Law

 A. Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 June 1989 until 17 August 1995.

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)(b), 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 .

D. 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.

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, provided 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 granted 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.
Employment/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 or is referred to a court-martial 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 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 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 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 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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