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USMC | DRB | 2008_Marine | MD0801946
Original file (MD0801946.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080924
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)       19930903 - 19940801     Active:  

Period of Service Under Review:
 Date of Enlistment: 19940802     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19980814      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 13 D a y ( s )
Education Level:        AFQT: 35
MOS: 3381
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      CoC(2) MM LoA

Periods of UA : 19961230 - 19970102 ( 2 days)
CONF: 19971117 - 19971130 (14 days )

NJP:
- 19951012 :      Article 91 (Willfully disobeyed a direct order), 2 specifications
         Spec 1: Remove his cap
         Spec 2: Report to camp guard and wait for me
         Article 92 (Violate MARCORBASESJAPANO 1020.1c by wearing a cap with a Marijuana leaf)
                   Awarded: Suspended:

- 19970124 :      Article 86 (U nauthorized absence: 19961230 - 19970102 ( 2 days) )
         Article 92 (Willfully disobeyed a MSgt, GySgt and Sgt )
                  Awarded: RIR RESTR EPD Suspended:

SCM:

- 19971114 :      Article 86 (U nauthorized absence ), 4 specifications
         Article 9 2 (Willful disobedience of lawful order)
          Article 90 (Willfully disobey a superior commissioned officer)
         Article 117 (Provoking speech)
         Article 128 ( Simple a ssault)
                  Sentence: 20 DAYS (19971117 - 19971130 (14 DAYS)
        Suspended: CONF 10 DAYS FOP

SPCM: Preferred charges for Article 112a (Drug abuse, wrongful use of a co ntrolled substance – Marijuana via NAVDRUGLAB 222356Z MAY 98)
Sentence: Separation In Lieu of Trial by Court-Martial with an Under Other than Honorable Condition Characterization of Service.
CC:

Retention Warning Counseling:
- 19980202 :       For your display of unprofessional conduct by having non-military visitors in your living space and your radio too loud.
- 19980602 :      For your positive use of THC, lab account number S9805128167.


NDRB Documentary Review Conducted (date):        20070626
NDRB Documentary Review Docket Number:   MD07-00931
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.

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 :

Applicant Testified:
Applicant Available for Questions:
Witnesses: The Applicant’s Spouse, Mother and Father
Observers:


Pertinent Regulation/Law
A. Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 August 1995 until 31 August 2001.

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)(b), 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, wrongfully use of a controlled substance).



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

Applicant’s Issues

1. Applicant believes his post-service conduct is worthy of upgrade consideration .

Decision

 Date: 20 0 9 0930   Location: Washington D.C . R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall .

Discussion

 The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant . The Applicant’s record of service included 6105 counseling warnings, nonjudicial punishments (NJP’s) and Summary Court-Martial (SCM) for o f the Uniform Code of Military Justice (UCMJ): Article 86 (Unauthorized absence: a two day UA and 4 failures to go), Article 90 (Willfully disobey ed an superior commissioned officer), Article 91 (Willfully disobey ed an order from an NCO: 2 specifications), Article 92 (fail ed to obey an order or regulation: 2 specifications), Article 117 (Provoking speech), and Article 128 ( Simple assault). In addition, charges were preferred for a Special Court-Martial (SPCM) for of the UCMJ: Article 112a (drug abuse, wrongful use of a controlled substance: Marijuana per NAVDRUGLAB message 222356Z May 98 ) , but the Applicant requested to separate in lieu of trial by court-martial. The Applicant did not have a pre-service drug waiver prior to entering the Marine Corps, but did acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 17 August 1993 . In making this request, the Applicant conferred with counsel, provided a statement for consideration by the separating authority and understood he was not entitled to an Administrative Board. The command granted his request and discharged him with an Under Other than Honorable characterization of service based on the offense(s) committed.

 : (Decisional) ( ) . The Applicant contends his post-service conduct is worthy of consideration for a discharge upgrade to “H onorable. ” When the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under “Honorable” conditions. A “General (Under Honorable Conditions)” is appropriate if the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance outweighs positive aspects of the member’s military record. Since his discharge, the Applicant has become married , extensively volunteers at his church (youth ministry, band , set-up and is training to be a deacon), is pursuing higher education towards a teaching degree (transcripts provided ) , substitutes as a teacher for special education children, attained a commercial drivers license in order to drive a bus, appointed as a notary public in the State of New Jersey , and maintained a clean record (no criminal involvement) . Under it’s authority to consider post-service conduct and contributions to the community, the Board did opine that the Applicant’s efforts were considerable and that he has become a positive influence within his community. The Board determined that, based on the Applicants extensive record of misconduct, an upgrade to Honorable, as requested by the Applicant, was not warranted. However, t he Board did determine , by a majority vote of 3-2, to change the Applicant’s character of service to General (Under Honorable Conditions). Relief granted.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and record entries, and discharge process, the Board found the discharge was proper and equitable at the at the time of discharge. However, based on his post-service efforts, the Board deemed it fit to award an upgrade to the Applicant’s chara c ter of service. Therefore, the awarded characterization of service shall GENERAL ( Under Honorable Conditions ) and the narrative reason for separation shall remain .

ADDENDUM: Information for the Applicant

 Complaint Procedures : If you believe 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 : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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. There are veterans organizations such as the American Legion and the Association of Service Disable Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. 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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB’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 BCNR can make changes to reenlistment codes. Additionally, the NDRB 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended 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 BCNR can grant this type of narrative reason change.

 Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. 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 during Board reviews. Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (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; attendance at 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 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 in-service misconduct was an aberration and not indicative of the member’s overall character.

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 NDRB 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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