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USMC | DRB | 2008_Marine | MD0801651
Original file (MD0801651.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080722
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) 19990720 - 19990816       Active:

Period of Service Under Review:
 Date of Enlistment: 19990817 Age at Enlistment:
Period of Enlistment : Years Months    
Date of Discharge: 20041122 H ighest Rank:
Length of Service: Years Months 2 D ays       
Education Level: AFQT: 36
 MOS: 5831 (Correctional Specialist)              
Proficiency/Conduct Marks (# of occasions): ( ) / ( ) Fitness Reports:

Awards and Decorations (per DD 214): Rifle LoA
Periods of UA: 20020621-20020623 (3)
20030430-20030630 (61)
NJP: 2
 - 20020503 : Article 86 (UA, not at place of duty), 2 specifications
Article 91 (Disrespectful language to a SNCO)
Article 92 (Failure to obey order or regulation) –sleeping on post
 Awarded: Suspended:

- 20021101 : Article 91 (Disrespectful language to a NCO)
 Article 92 (Failure to obey order or regulation) –Liquor in BEQ
 Awarded: Suspended:

SPCM:

- 20030520 : Article 86 (UA)
                           Article 112a (Drug use, use of Marijuana on/about 28 January 2003 and 8 April 2003), 2 specifications
Article 128 (Assault)
 Sentence: BCD; RIR, FOP CONF
Retention Warning Counseling:

- 20020503 :      For NJP Articles 86, 91 and 92
- 20021022 : For Art 92 (Failure to obey order or regulation – provided contraband to prisoners)
- 20021104 : For NJP Articles 91, 92
 - 20021205 :      For Articles 92 (Traffic citation for expired registration and no insurance).
- 20021218 : For Personality Disorder
- 20030116 : For Personality Disorder
Types of Documents Submitted/reviewed

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

                  - Record of Trial from 20 May 2003
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:

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 II, Para 211, Regularity of Government Affairs , Part IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications , 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 86 (UA); Article 112a (Drug abuse); and Article128 (Assault).


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

Applicant’s Issues

 1. Discharge inequitable due mitigating circumstances (medical).

Decision

 Date: 20081204 Location: Washington D.C.       R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall SECRETARIAL AUTHORITY.
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 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 particular case merited clemency.

The Applicant contends his discharge was inequitable due to mitigating circumstances, specifically medical evaluations referencing a personality disorder. The Board completed a thorough review of the circumstances which led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety. 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 record of service was marred by 6 retention warning, 2 NJP’s and 1 SPCM for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (UA), Article 91 (Insubordinate conduct), Article 92 (Failure to obey orders or regulations), Article 112a (Drug abuse, wrongful use of marijuana), and Article 128 (Assault). The Applicant was seen by a Navy psychiatrist as early as March 2002 and was diagnosed with a personality disorder; his first NJP was on 3 May 2002. The Navy psychiatrist recommended the Applicant be expeditiously separated from the military due to his personality disorder. The Board found paperwork that indicates the Applicant should have been separated in July 2002, but for some unknown reason was retained. The Applicant’s record does not reflect why he was retained. Additional misconduct by the Applicant began in October 2002 and continued until he was eventually discharged in 2004. The Board does not condone the actions of the Applicant from October 2002 until his discharge by SPCM in 2004 as a Marine is always responsible for his actions, unless otherwise stated by a medical assessment, which in the Applicant’s case there was none. The Board felt the Marine Corps should have executed the initial separation orders in July 2002, prior to the more serious misconduct taking place. The Board determined an upgrade, per the separation orders dated 15 July 2002 had they been executed, to “General (under Honorable conditions)” would be appropriate.

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


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, 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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