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USMC | DRB | 2008_Marine | MD0801915
Original file (MD0801915.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080919
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request: Characterization change to: HONORABLE OR
                  Narrative Reason change to:

Summary of Service

Prior Service:
Inactive: USMCR (DEP)     20021108 - 20021209     Active:  

Period of Service Under Review:
Date of Enlistment: 20021210     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070207      H ighest Rank:
Length of Service : Y ea rs M on ths 07 D a ys
Education Level:        AFQT: 39
MOS: 6541 (Aviation Ordnance System Tech)
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle NUC

Periods of CONF : 20051220 – 20060710 (203 days)

NJP: SCM: CC: Retention Warning Counseling :

SPCM:
- 20060316 : Art icle 80 ( Attempts), 2 specifications:
                  - Attempt to sell “Percocet”
                  - A ttempt to possess with intent to distribute methamphetamine
Article 112a ( Drug use), 3 specifications:
 - W rongfully distribute d 5 grams of marijuana
- W rongfully use d methamphetamine
- W rongfully use d Vicadin
Sentence : BCD; FOP, CONF for 9 months (20051220-20060710 (203 days)) , RIR TO E-1

Types of Documents Submitted/reviewed

 Related 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 Representat ion :   From Congress member :

Other Documentation :


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

Applicant’s Issues

 1. Isolated incident, he was caught with the wrong people.
2. Post service conduct.

Decision

 Date: 20 0 9 0212            Location: Washington D.C .        R epresentation :

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

 : ( ) . The Applicant contends clemency should be granted based on his record of service which was good apart from a single period of misconduct. In response to the Applicant’s clemency request, relevant and material facts stated in court-martial specification s 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 sev erity of the punishment imposed. The Applicant’s record of service was marred by a S PCM for violations of the U niform C ode of M ilitary J ustice (UCMJ): Article 80 (Atte mpts , possess and distribute a controlled substance) and Article 112a (Drug abuse ; wrongful use, possession and distribut ion of a controlled substance). The Applicant attempted to sell Percocet; attempted to possess with the intent to distribute methamphetamines; wrongfully used marijuana, methamphetamines, and Vicadin.

The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this pa rticular case merited clemency. The NDRB advises the Applicant certain serious offenses , even though isolated, 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 , grade or prior record of service. 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. The Applicant was ref erred to a SPCM for his misconduct and subsequently found guil t y and awarded the punitive discharge for “Bad Conduct”. The Applicant did not provided any documentation or evidence in support of his request and the Board determined that clemency would be inappropriate. The awarded discharge characterization of “Bad Conduct” was appropriate and an upgrade would be inappropriate.

Issue 2: (Clemency) RELIEF NOT WARRATNED. The NDRB is authorized to consid er post-service factors in consideration if a case warrants clemency . 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 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; 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; attending or completion of higher education (official transcripts) 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 / accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character to justify clemency.

Besides the Applicant’s statement on the D D Form 293, he failed to provide any additional documentation or evidence on his behalf. Although the Applicant said he has had a full time job over the last year and a half, the Board determined this does not meet the high standard required to warrant clemency. To warrant clemency, the Appl icant’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 alo ne does not guarantee clemency . The Board determined the characterization of service received, “ Bad Conduct Discharge ”, was an appropriate characterization considering the length of service and the UCMJ violations involved, and based on the lack of post ser vice documentation provided , clemency would be inappropriate.
 Should the Applicant obtain additional evidence or post service documentation he may wish to apply for a personal appearance. There are veteran’s organizations, such as the American Legion, willing to provide guidance to assist former service members in their efforts to obtain a discharge upgrade.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service and Medical Record Entries, Discharge Process 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 s of the UCMJ: Article 80 (Attempts) and Article 112a ( D rug use ; wrongful use, possession and distribut ion of controlled substance s ).


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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