Search Decisions

Decision Text

USMC | DRB | 2008_Marine | MD0800937
Original file (MD0800937.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080314
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)     20030322 - 20030413              Active:

Period of Service Under Review:
Date of Enlistment: 20030414      Period of E nlistment : Years Months     Date of Discharge: 20071016
Length of Service : Y ea rs M on ths 22 D a ys       Education Level:        Age at Enlistment:
AFQT: 40 MOS: 0612        Highest Rank: Fitness R eports:
Proficiency/Conduct M arks (# of occasions):       NFIR
Awards and Decorations ( per DD 214): Rifle Pistol

Periods of UA / CONF : UA : 20050624-20050627 (4 days)

CONF: 20050713-20050818 (37 days)

NJP :
- 20050629 : Art icle 86 (U A) 20050624-20050628 (4 days)
Awarded : Susp ended:

S CM : CC:        6105 Counseling :

SPCM:
- 20050801 : Art icle 112a ( Drug use), 3 s pecifications
                 - Specification 1 : Wrongfully used marijuana on 22 April 2005 and 0 2 May 2005
                  - Specification 2: Wr ongfully used mariju ana on 0 6 May 2005 and 16 May 2005
- Specification 3 : Wrongfully used marijuana on 20 June 2005 and 30 June 2005
 Sentence : BCD; RIR to E-1 ; Confinement for 45 days; FOP $823/month for six months.

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 Representat ion :              From Member of Congress:

Other Documentation (Describe) :



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

Applicant’s Issues

 1. Record of service.

Decision


 Date: 20 08 1106             Location: Washington D.C .         R epresentation :

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

 : ( ) . 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. 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 which reduces the severity of the punishment imposed. The Applicant contends that clemency is warranted due to his record of service. The Applicant’s record of service is marred by one NJP for violation of the Uniform Code of Military Justice (UCMJ: Article 86 (U A ) , and one SPCM for a violation of Article 112a (Drug use ) . Violation of Article 112a is considered a serious offense, punishable by punitive discharge and confinement if adjudicated and awarded by a special or general court-martial. The NDRB determined the sentence adjudged at his court-martial was appropriate given the Applicant’s record of service and record of serious misconduct on at least six occasions ; a n upgrade would be inappropriate.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Court-Martial proceedings, Discharge Process , Post Service Conduct and Accomplishments, and evidence submitted by the
Applicant, t he Board found clemency was not warranted and the sentence awarded the Applicant at his court-martial was appropriate for the offense s he committed .

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 .

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, 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 or is referred to a court-martial fo r 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

Similar Decisions

  • NAVY | DRB | 2007_Navy | ND0700534

    Original file (ND0700534.rtf) Auto-classification: Denied

    By a vote of the Narrative Reason shall MISCONDUCT. ” 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. 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.

  • NAVY | DRB | 2006_Navy | ND0601181

    Original file (ND0601181.rtf) Auto-classification: Denied

    USS JOHN C. STENNIS APPOINTMENT OF AN ADMIN BOARD ICO APPLICANT Medical Record Entries Related to Characterization of Service or Narrative Reason for Separation NONE Elements of Discharge: [INVOLUNTARY] Discharge Process: Date Notified:20050805Reason for Discharge due to: due to: Least Favorable Characterization: Record Supports Narrative Reason: Date Applicant Responded to Notification: 20050805Rights Elected at Notification:Consult with Counsel Administrative Board Obtain Copies Submit...

  • NAVY | DRB | 2009_Navy | ND0900525

    Original file (ND0900525.rtf) Auto-classification: Denied

    The Board determined the characterization of service received, “Under Other Than Honorable Conditions”, was an appropriate characterization considering the length of service and the UCMJ violations involved, and based on the lack of post service documentation provided an upgrade would be inappropriate. The NDRB determined the awarded discharge was appropriate and an upgrade would be inappropriate.After a thorough review of the available evidence, to include the Applicant’s Summary of...

  • USMC | DRB | 2013_Marine | MD1301104

    Original file (MD1301104.pdf) Auto-classification: Denied

    MD13-01104 en DEPARTMENT OF THE NAVY NAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT APPLICANT?’S ISSUES 1. The NDRB determined the Applicant’s post-service efforts do not warrant clemency. You may view DoD Instruction 1332.28 and other Decisional Documents by going online at “http://Boards.Jaw.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...

  • USMC | DRB | 2009_Marine | MD0900750

    Original file (MD0900750.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated to Military Service: DD 214:Service/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 Congress member: Other Documentation: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL...

  • NAVY | DRB | 2010_Navy | ND1000789

    Original file (ND1000789.rtf) Auto-classification: Denied

    Representation: 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 Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include...

  • USMC | DRB | 2006_Marine | MD0601193

    Original file (MD0601193.rtf) Auto-classification: Denied

    After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable. UNDER OTHER THAN HONORABLE CONDITIONS (20050817) SJA review (date): (20050907)Separation Authority (date): COMMANDING GENERAL, MARINE AIR GROUND TASK FORCE TRAINING (20050907)Narrative Reason directed: Characterization...

  • USMC | DRB | 2007_Marine | MD0700605

    Original file (MD0700605.rtf) Auto-classification: Denied

    The Applicant provided evidence of post-service employment and lack of criminal record since his discharge; however, after a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct which precipitated the discharge.In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is...

  • NAVY | DRB | 2008_Navy | ND0801097

    Original file (ND0801097.rtf) Auto-classification: Denied

    [Extracted from CO, TRIDENT Refit Facility letter 20050624].NJP:SCM:SPCM:CC:Retention Warning Counseling:NDRB Documentary Review Conducted (date): 20070510 NDRB Documentary Review Docket Number: ND06-00888 NDRB Documentary Review Findings: NO CHANGE WARRANTED Types of Documents Submitted/reviewedRelated to Military Service: DD 214: Service/Medical Record: Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Substance Abuse: Criminal...

  • USMC | DRB | 2009_Marine | MD0902330

    Original file (MD0902330.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. The review encompassed the Applicant’s entire service and administrative discharge records and found no evidence or documentation of PTSD diagnosis from a competent medical or mental health authority, to include the Applicant’s pre-separation physical that included a mental health screen in which a U.S. Navy Physician found no evidence of PTSD.Summary: After a thorough review...