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USMC | DRB | 2008_Marine | MD0800962
Original file (MD0800962.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080408
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)     19970317 - 19970325              Active:

Period of Service Under Review:
 Date of Enlistment: 19970326               Period of E nlistment : Years Months             Date of Discharge: 19980916
Length of Service : Yrs Mths 22 D ys      Education Level:         Age at Enlistment:       AFQT: 52
MOS: 9971        Highest Rank:                     Fitness R eports:
Proficiency/Conduct M arks (# of occasions):      2.3 ( 2 )/ 2.3 ( 2 )
 Awards and Decorations ( per DD 214): Rifle

Period of Pre-trial confinement per DD 214 : 19971112-19971210 (29 Days).

NJPs :    
19971017 : Art icle 112a (Wrongf ully use a controlled substance), tested positive for Meth/Amph on a urinalysis
conducted on 19970729) ,
Art icle 112a (Wrongfully use a controlled substance, tested positive for THC on a urinalysis conducted on
19970821).
 Art icle 86 (U nauthorized absence), from 1801-2150, 19971013).
Awarded - . Susp - .

S CMs :   

SPCMs:  
19971211 : Art icle 112a (Wrongfully use methamphetamine on or about 19971028).
Sentence - BCD CONF FOR 29 DAYS FOP .
CC:      

6105 Counseling :
19971017 :         For : Article 86, UA from organization 1801-2150 19971013,
Article 112a, Wrongful ly use d a controlled substance ; tested positive for
M ethamphetamine/Amphetamines on a urinalysis conducted on 19970729,
Article 112a, Wrongfully use d controlled substance ; tested positive for Tetrahydrocannbinol on a
urinalysis conducted on 19970821









Types of Documents Submitted/reviewed

 Related to Military Service:      DD 214:          Service and/or Medical Record:            Other Records:

         - Record of Trial dated 11 December 1997.

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) Letters from BCNR.


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

Applicant’s Issues

 1. Desires his BCD changed to UNCHARACTERIZED.
2. Post s ervice conduct.

Decision


 Date: 20 08 0814             Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall AS A RESULT OF A COURT-MARTIAL .
Discussion

 Issue 1 (Clemency ) : RELIEF NOT WARRANTED. The Applicant requests an upgrade from a “ Bad Conduct Discharge ” to “ Uncharacterized ”. 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. R elevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts.

For the edification of the Applicant, a n UNCHARACTERIZED DISCHARGE is issued to service members who are within the first 180 days of continuous active duty service. A review of the service record indicated the Applicant’s net service was 1 year, 4 months and 22 days. This falls outside the established parameters of being within the first 180 days of continuous active duty service and makes the Applicant in eligible for an “Uncharacterized Discharge”.

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. The Applicant’s service record was marred by 1 nonjudicial punishment for an unauthorized absence and drug use, and a special court-martial for drug use. The Applicant received a “ Bad Conduct D ischarge ” for a violation of the U niform C ode of M ilitary J ustice, A rticle 112a (Drug abuse) , by the wrongful use of methamphetaminem . This offense is punishable , if adjudicated at a special or general court-martial , by a Dishonorable Discharge and up to 5 years in prison. The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency . The NDRB found the evidence of record did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offense for which the discharge was awarded. In addition, the reason for discharge, convicted by special court-martial, i s most appropriate.

Issue 2 (Equity) : RELIEF NOT WARRANTED. The Applicant request an upgrade based on his post service record . The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent that 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. The Applicant provided limited documentation of post service accomplishments . He submitted only four letters of recommendation. The Applicant's efforts need to be more encompassing. For example, the Applicant could have produced evidence of a verifiable and continuous employment record, documentation of community /church service, proof of sobriety a nd certification of non-involvement with civil authorities. 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 conduct mitigates the reason for the characterization of discharge.
The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge and an upgrade would be inappropriate.

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


Pertinent Regulation/Law

 A. Paragraph 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURT-MARTIAL , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 950818 until 010831 .

B. 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 .

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, punishable by a Dishonorable Discharge and up to 15 years confinement.



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, 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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