Search Decisions

Decision Text

USMC | DRB | 2009_Marine | MD0900032
Original file (MD0900032.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080923
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)     20020311 - 20020616     Active:  

Period of Service Under Review:
Date of Enlistment: 20020617     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20050718      H ighest Rank:
Length of Service : Y ea rs M on ths 02 D a ys
Education Level:        AFQT: 31
MOS: 3531
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (Iraq) IRM (2) (Iraq) NDSM PUC-N

Periods of UA / CONF :

NJP:
- 20040427 : Article 92 (Derelict in performance of duty)
 A rticle 108 (Operate zMR23, 7 ton truck in excess of a safe speed, lose control and tipped it over)
 Awarded : Susp ended: EPD

 - 20050407 : Article 86 ( UA, f ailed to go at time prescribed to appointed place of duty 0700-1300, 20050317)
 Article 112a ( 2 s pecifications - Tested po sitive for THC and wrongful possess marijuana )
Awarded : Susp ended:

SCM: SPCM: CC:

Retention Warning Counseling :

- 20050408 :       For your illegal drug use and pattern of misconduct.
- 20050411 :       For being found guilty at NJP for Article 86 and Article 112a.
- 20050426 :       For conviction of Article 92 and Article 108 at CO Level NJP on April 2005, and Article 86 and 112a on April 2005.

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:       
        
Related to Post-Service Period (cont) :

Family/Personal Status:                   Community Service:                References:              
Additional Statements :
From Applicant:         From Representat ion :   From Congress member :

Other Documentation :

Pertinent Regulation/Law

 A. The Marine Corps Separation and Retirement Manual, (MCO P1900.16F, effective 1 September 2001 until Present, Paragraph 6210, MISCONDUCT .

 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 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 s of the UCMJ : Article 86 (U A ), Article 92 (Dereliction of duty), Article 108 (Destruction of Government property) and Article 112a (Drug abuse, wrongful use and possession of a controlled substance).



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

Applicant’s Issues

1. Discharge was due to mitigating circumstances .

Decision

 Date: 20 0 9 0129            Location: Washington D.C .         R epresentation :

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

 : ( ) The Applicant contends his misconduct was due to mitigating circumstances. The Applicant claims he did not want to go back to Iraq for his third tour after he found out , prior to his departure, a fellow Marine whom he befriended was killed a few weeks earlier while on his third tour in Iraq . 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 is marred by 3 retention warnings and 2 non-judicial punishment s for violations of the Uniform Code of Military Justice, Article 86 (U A ), Article 92 (Dereliction of duty), Article 108 (Destruction of Government property) and Article 112a, (Drug abuse , wrongful use and possession of a controlled substance). 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. The command did not pursue a punitive discharge, but opted instead for administrative discharge.

While the Board understands the stress related to having close comrades killed in battle the Board rejects this as justification for misconduct form a U.S. Marine with over 3 years of service and multiple combat tours of duty. The Board determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate.

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 under 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; 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 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.

Besides the Applicant’s statement on the DD Form 293, he failed to provide any additional documentation or evidence on his behalf. To warrant an upgrade 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, “Under Other Than Honorable Conditions”, was an appropriate characterization considering the length of service and the UCMJ violations involved, and based on the lack of post service documentation provided an upgrade would be inappropriate. Should the Applicant feel at some


later time his post service conduct is worthy of personally presenting to the NDRB there are organizations, such as the American Legion, willing to provide guidance and assistance in preparing such a presentation.

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, 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

Similar Decisions

  • USMC | DRB | 2008_Marine | MD0801960

    Original file (MD0801960.rtf) Auto-classification: Denied

    By a vote of the Narrative Reason shall COURT-MARTIAL.Discussion :().The Applicant contends he deserves better than a “Bad Conduct” discharge after serving many years in the Marine Corps and taking part in Operation Iraqi Freedom in 2003. ” 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. If a former member has been discharged for...

  • NAVY | DRB | 2008_Navy | ND0801789

    Original file (ND0801789.rtf) Auto-classification: Denied

    The Board determined the characterization of service received, “Under Other Than Honorable Conditions”, was an appropriate characterization considering the time served and the UCMJ violations involved, and based on the limited post service documentation provided an upgrade would be inappropriate. 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...

  • USMC | DRB | 2008_Marine | MD0800970

    Original file (MD0800970.rtf) Auto-classification: Denied

    ” 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. 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,...

  • USMC | DRB | 2009_Marine | MD0900671

    Original file (MD0900671.rtf) Auto-classification: Denied

    ” 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. Service Benefits: The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.

  • USMC | DRB | 2008_Marine | MD0801298

    Original file (MD0801298.rtf) Auto-classification: Denied

    The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.However, the Applicant submitted no verifiable documents as mentioned in the above paragraph for the Board to consider in a clemency review. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Court-Martial proceedings, Discharge Process, Post Service Conduct and Accomplishments,...

  • USMC | DRB | 2007_Marine | MD0700857

    Original file (MD0700857.rtf) Auto-classification: Denied

    Certain serious offenses, even though isolated, warrant separation from the Naval service in order to maintain proper order and discipline.The Applicant’s service was marred by one retention warning, one nonjudicial punishment for a violation of UCMJ Article 92 (Failure to obey an order or regulation) and Article 108 (Destruction of government property), and one Summary Court Martial finding of guilty for two specifications of Article 112a (Wrongful use of controlled substance). After a...

  • USMC | DRB | 2015_Marine | MD1500007

    Original file (MD1500007.rtf) Auto-classification: Denied

    Based on the Article 112a violation, processing for administrative separation is mandatory. ” 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. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.

  • USMC | DRB | 2007_Marine | MD0700192

    Original file (MD0700192.rtf) Auto-classification: Denied

    Applicant claims his medical issues contributed to his misconduct and adverse discharge. (2) Wrongfully possess some amount of marijuana Article 112a: Wrongfully use marijuana.Date Applicant Submitted SILT request: 20051109 Consulted with or Waived Counsel: Acknowledged Understanding Elements: Acknowledged Guilt to: Article(s) 86 and 112a BCD/DD authorized for offense(s) Acknowledged Consequences of OTH: Type of Characterization Requested: Commanding Officer Recommendation...

  • NAVY | DRB | 2010_Navy | ND1002184

    Original file (ND1002184.rtf) Auto-classification: Denied

    Applicant wants discharge upgraded so he can reenlist in the military.2. : (Non-decisional) The Applicant wants his discharge upgraded so he can reenlist in the military. ” 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.

  • USMC | DRB | 2009_Marine | MD0900387

    Original file (MD0900387.rtf) Auto-classification: Denied

    By a vote of the Narrative Reason shall IN LIEU OF TRIAL BY COURT MARTIAL.Discussion :().The Applicant contends he received “double jeopardy” for traffic violations. Violation of Article 112a is one such offense requiring mandatory separation regardless of time in service or grade. The Board determined the characterization of service received, Under Other Than Honorable Conditions, was an appropriate characterization considering the length of service and the UCMJ violations involved, and...