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USMC | DRB | 2008_Marine | MD0801733

Original file (MD0801733.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20080813

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)     19970728 - 20030227              Active:

Period of Service Under Review:
Date of Enlistment: 19970820      Period of E nlistment : Years Months     Date of Discharge: 20030227
Length of Service : Y ea rs M on ths 08 D a ys        Education Level:        Age at Enlistment:
AFQT: 61          MOS: 6153         Highest Rank:    Fitness R eports:
Proficiency/Conduct M arks (# of occasions) : ( ) / ( )
Awards and Decorations ( per DD 214): Rifle

Periods of UA / CONF : 20000511-20000603

NJP:
- 19990624 : Art icle 92 (Failure to obey lawful order by consuming alc ohol while under the legal drinking age of 21 )
A warded :

S CM : CC:

SPCM:
- 2000511 : Art icle 112a ( Drug use, w rongfully used marijuana)
Sentence : BCD;

6105 Counseling :
- 19981217 : For failure to be at appointed place of duty, disrespect to superiors, disobedience of orders.

- 19990630: For failure to be at your appointed place of duty, wrongful appropriation in that you took an article
b elonging to someone else, failure to maintain Marine Corps weight standards, lack in initiative, poor
judgment, and your unprofessional behavior .

- 19991026: Unsatisfactory performance specifically, failure to make progress after s ix months of assignment to the
remedial PT program, pattern of misconduct specifically, (your consistent defiant attitude towards military
authority) and your frequent violations of minor disciplinary infractions specifically you r failure to obey
all rules and regulations.

- 20000523: Refusal of drug rehabilitating training.

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) :

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. 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.

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

Applicant’s Issues

1. Made a bad decision based on the fact he was intoxicated .
2. Was denied medical treatment to address alcoholism.
3. Post service record.

Decision

Date : 20 08 1218 Location: Washington D.C . R epresentation :

By a vote of the Characterization shall remain BAD CONDUCT DISCHARGE .
By a vote of the Narrative Reason shall COURT MARTIAL .

Discussion

: ( ) . The Applicant is asking for clemency because he states his use of marijuana was a one time loss of judgment based on the fact he was intoxicated at the time he smoked the drug . 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 admitted to using drugs prior to joining the U nited S tates M arine C orps (USMC); h e was given a pre-existing drug use waiver to come on active duty. While he claims his drug use occurred only once on 2 4 December 2000 while attending a Christmas party, he admits guilt in his court martial to multiple charges of usage of the illegal drug during the months of November and December 2000. In his statement, the Applicant acknowledges the effects of the beer he was drinking were starting to wear off , so he accepted the marijuana cigarette to regain his “buzz”. This is not a decision made by a fully intoxicated individual.

The Applicant was 20 years old and had been in the USMC for almost 2 ½ years at the time of his misconduct. 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 special or general court-martial. Illegal drug use cannot be tolerated by any member of the Marine Corps, regardless of grade or time in service. In accordance with Marine Corps policy, all Marines (regardless of pay grade) are processed for separation due to drug abuse on the first offense. This can be an administrative discharge or as the result of conviction by court martial ; the Applicant received a court-martial for his misconduct . The evidence of record does not demonstrate the Applicant was not responsible for his conduct or that he should not be held accountable for his actions .

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. The Board determined the awarded discharge characterization was appropriate and clemency was not warranted.

: ( ) . The Applicant claims his misconduct was a result of not receiving treatment for his alcohol addiction. He claims he attempted to attend a resident Level III rehabilitation program at two different medical facilities, but was denied admission because h is paperwork was not complete. 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 medical records shows he was first diagnosed as alcohol dependent in March 2000 and was referred to a resident treatment program. His records reveal on 11 May

2000, he was again referred for a clinical evaluation due to his self-reported alcohol abuse. On 23 May 2000, he refused drug rehabilitation train i ng and acknowledged he was offered every opportunity to avail himself of medical evaluation. No where is there any documentation to support the Applicant’s claim he showed up at two resident programs , but was denied admission because he did not have proper military paperwork. He produce d no statements from witnesses ’ collaborating his statement or even a copy of the improper orders. Since t he Applicant did not provide documentation to support his claim , the Board determined clemency at this time is not warranted.

: ( ) . The Applicant asks for mitigation since he has been sober for three years now. The NDRB 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 u nder review, is considered during Board reviews. Documentation to help support a post service conduct upgrade includes, but is not limited to: a verifiable continuous employment record ; marriage and children’s birth certificate (if applicable); 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.

To warrant an upgrade based on clemency the Applicant’s post service efforts need to be more encompassing. The Applicant could have produced additional evidence as stated in the above paragraph with the full understanding completion of these items alone does not guarantee an upgrade. The Board determined the characterization of service received was an appropriate characterization considering the time served and the UCMJ violations involved, and based on the lack of post service documentation provided clemency would be inappropriate.
The B oard 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

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

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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USMC | DRB | 2008_Marine | MD0801733

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