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USMC | DRB | 2008_Marine | MD0801306
Original file (MD0801306.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080529
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)     19990930 - 19991013              Active:          19991014 - 20031002

Period of Service Under Review:
Date of Enlistment: 20031003      Period of E nlistment : Years Months     Date of Discharge: 20060522
Length of Service : Y ea rs M on ths 10 D a ys        Education Level: Age at Enlistment:
AFQT: 35          MOS: 1345         Highest Rank:    Fitness R eports:
Proficiency/Conduct M arks (# of occasions):       ( ) / ( )
 Awards and Decorations ( per DD 214): Rifle (KUWAIT) (2) PUC LoA (3) CoA

Periods of UA / CONF : NJP : S CM : CC: 6105 Counseling :

SPCM:   
- 20040518 : Art icle 112a ( Drug abuse, w rongfully use cocaine)
Sentence : BCD; CONF FOR 50 DAYS, RIR TO E-2
CA Action (20050328) Approved and, except for the bad conduct discharge, will be executed.
Types of Documents Submitted/reviewed

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

                  - Record of Trial dated



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. Desires medical benefits.
2. Wants to gain employment within the service.
3. Adjustment difficulties from Iraq tour caused misconduct.

Decision

Date: 20 0 90212        Location: Washington D.C .         R epresentation :

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

 : either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum , specifically the paragraphs concerning and , regarding .

: ( ) . The Applicant contends he was having adjustment disorders from his Iraq tour, thus mitigating his misconduct. 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 that reduces the severity of the punishment imposed. The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this par ticular case merited clemency. The Applicant’s record of service was marred by a S PCM for a violation of the Uniform Code of Military Justice (UCMJ): Article 112a (Drug use) . 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 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 sp ecial or general court-martial. The command did refer the Applicant to a SPCM and he was subsequently awarded a “Bad Conduct” discharge.

The NDRB is authorized to consid er post-service factors to determine if a case warrants clemency . Outstanding post-service conduct, to the extent such matters provide a basis for clemency, are co nsidered during Board reviews . Supporting documentation to help support post service clemency includes, but is not limited to: a verifiable continuous employment record ; 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 compan ies , or other financial institutions; attending or completion of higher education (official transcripts); character witness statements; and documentation of a drug free lifestyle. The Applicant is advised that completion of these items alone does not guarantee clemency will be granted, as each discharge is reviewed by the Board on a case by case basis to determine if post service conduct justifies clemency .

Besides the Applicant s statement on the DD Form 293, he provided a document referencing he is receiving treatment for his medical issues and character references from three SNCO’s and an NCO, whom the Applicant had worked for. It was noted the letter referencing treatment at the West Los Angeles Healthcare Center was not submitted on letterhead paper of the facility ands is undated. A review of the Record of Trial revealed no mention of any issues related from a combat deployment in Iraq were contributing factors in his misconduct. In fact, in almost 200 pages form the Record of Trial the only reference to OIF was a statement the Applicant made indicating he was “a little disappointed, sir, that I didn’t get a chance to go forward with – and lead Marines during the war.” This statement is in direct conflict to one made on his reference letter from the West Los Angeles Hea l thcare Center where they indicate the Applicant was seeking help due to combat experience in Iraq. The


Applicant was assigned in Kuwait and remained there to support the base camp which was under construction. Further reading reveals the applicant used cocaine at a Super Bowl party among friends whil e drinking beer. The Applicant failed to convince the NDRB any experience related to OIF was the causative factor for his cocaine use at a Super Bowl party.

The Applicant requested an upgrade to “General (Under Honorable Conditions)” however, the Board determined violation of Article 112a was not reflective of Marine’s normally in receipt of a “General (Under Honorable Discharge)”. However, a fter thoughtful consideration of the Applic ants overall record of service and misconduct the Board determined clemency would be appropriate. However, clemency was not based on the Applicant’s claim of issues from his deployment. The Board’s vote was 5-0 that the characterization of the discharge should be upgraded to an “Under Other Than Honorable ” based on the singularity of his misconduct .

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 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 (Drug abuse, wrongful use of a controlled substance).


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

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