Search Decisions

Decision Text

USMC | DRB | 2009_Marine | MD0900361
Original file (MD0900361.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20081205
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)     19990202 - 19990215     Active:  

Period of Service Under Review:
Date of Enlistment: 19990216     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20021009      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 24 D a y ( s )
Education Level:        AFQT: 42
MOS: 0811
Proficiency/Conduct M arks (# of occasions): ( 5 ) / 2.4 ( 5 )       Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle Pistol

Periods of UA / CONF : NJP: SCM: CC:

SPCM:

- 20001206 :      Article 86 (UA) , 5 specifications :
                  - Specification 1: Failure to go to appointed place of duty 0645, 20000224.
                  - Specification 2: Failure to go to appointed place of duty 0800, 20000224.
                  - Specification 3 : Failure to go to appointed place of duty 0730, 20000320.
                  - Specification 4 : Failure to go to appointed place of duty 0700, 20000921.
                  - Specification 5 : Unauthorized absence 20000327-20000914 (174 days) .
         Article 112a ( Drug use, w rongfully use cocaine)
         Sentence : BCD; RIR E-1; Confinement 60 days (20001206-20010111 (36 days)) .


Retention Warning Counseling :

- 20000111 :       For drug involvement.

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:              


Related to Post-Service Period (cont):
Additional Statements :
From Applicant:         From Representat ion :   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 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 of the UCMJ, Article 86 and Article 112a .



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

Applicant’s Issues

 1. Reenlistment opportunity.
2. Isolated incident of misconduct.
3. Not offered drug counseling.
4. Post-service conduct.

Decision

 Date : 2009 0305             Location: Washington D.C .         R epresentation :

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

 : either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum , specifically the paragraph concerning , regarding this Issue.
: ( ) . The Applicant contends he is entitled to clemency because his misconduct was an isolated incident. 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 which reduces the severity of the punishment imposed. The Applicant’s record of service was marred by one SPCM for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (UA); Article 86 (Failure to go to appointed place of duty) and Article 112a ( Drug use, w rongful use or possession of a controlled substance). The record of evidence does not support the Applicant’s contention. He was convicted for two serious offenses : U nauthorized absence for 174 days and wrongful use of cocaine. The Applicant should understand the substantiated use of illegal drugs result s i n, at a minimum, mandatory processing for an administrative separation . Had the Applicant’s sentence not included punitive discharge, his command would have been obligated to initiate administrative separation proceedings. The NDRB determined clemency is not warranted.

: ( ) . The Applicant contends he is entitled to clemency because he never received drug and alcohol counseling. The NDRB rejects the Applicant’s contention because the record clearly shows the Applicant knew the Marine Corps’ policy on illegal drug use . The Applicant signed a statement of understanding of the Marine Corps’ policy on illegal drug use, which states, in part, “The illegal distribution, possession or use of drugs is not tolerated in the United States Marine Corps. Furthermore, each instance of illegal drug use by a Marine makes that Marine unfit for duty and a risk to the safety of fellow Marines.” The NDRB determined clemency is not warranted.

For the edification of the Applicant, all service members separated for drug abuse are screened for drug dependency and provided the option of treatment prior t o separation. The intent of this treatment is for the benefit of the Applicant after discharge, not to rehabilitate the Applicant for continued service.

: ( ) . The Applicant contends he is entitled to clemency due to his post-service conduct. 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 which reduces the severity of the punishment imposed. The NDRB is authorized to consider post-service factors in determining if clemency is warranted . However, there is no law or regulation, which provides clemency b ased 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 post service conduct clemency , 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.

The Applicant provided statements of employment, education, stable family existence, and becoming more mature. While the Board applauds the Applicant’s post service efforts, the Board determined the evidence of post-service conduct is not sufficient to warrant clemency. To warrant 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 clemency . The NDRB determined clemency was not warranted.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service 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.


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

  • NAVY | DRB | 2009_Navy | ND0900558

    Original file (ND0900558.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1. 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 Applicants...

  • USMC | DRB | 2015_Marine | MD1500349

    Original file (MD1500349.rtf) Auto-classification: Denied

    There is no indication in the evidence of record or in the documentation submitted by the Applicant that the Applicant was recommended for or processed for a medical board by proper authority. ” 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 does not have the authority to change a...

  • USMC | DRB | 2007_Marine | MD0700124

    Original file (MD0700124.rtf) Auto-classification: Denied

    Discharge ProcessElements of Discharge: [SEPARATION IN LIEU OF TRIAL] Date Charge(s) Preferred: 20030909 Charge(s) and Specification(s): Article 112A: Wrongfully use cocaine.Date Applicant Submitted SILT request: 20031004 Consulted with or Waived Counsel: Acknowledged Understanding Elements: Acknowledged Guilt to: Article(s) 112a BCD/DD authorized for offense(s) Acknowledged Consequences of OTH: Type of Characterization Requested: GENERAL (UNDER HONORABLE CONDITIONS)Commanding Officer...

  • NAVY | DRB | 2011_Navy | ND1101511

    Original file (ND1101511.rtf) Auto-classification: Denied

    Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entriesand discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. ” Additional Reviews : After a document review has been conducted, former members are...

  • USMC | DRB | 2013_Marine | MD1300338

    Original file (MD1300338.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. ” 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 | 2011_Marine | MD1101198

    Original file (MD1101198.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated to Military Service: DD 214: Service/Medical Record: Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Rehabilitation/Treatment: Criminal Records: Personal Documentation: Community Service: References: Department of VA letter: Other Documentation: Additional Statements: From Applicant: From/To Representation: From/To Congress member: Pertinent Regulation/Law A.The Marine Corps...

  • USMC | DRB | 2014_Marine | MD1400127

    Original file (MD1400127.rtf) Auto-classification: Denied

    The Applicant’s service record documents a punitive conviction and punishment, as adjudged by a Special Court-Martial, on 2 May 2001. ” 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 | 2008_Marine | MD0801849

    Original file (MD0801849.rtf) Auto-classification: Denied

    The Applicant provided no documentation for the Board to consider during its review. ” 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. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.

  • USMC | DRB | 2009_Marine | MD0902609

    Original file (MD0902609.rtf) Auto-classification: Denied

    By a vote of 3-0, the administrative board found the misconduct was proven by a preponderance of the evidence and recommended separation with a General (Under Honorable Conditions) characterization of service.The Applicant provided documentation that included: In-service records, statements from witnesses, and the transcript of the administrative board. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided...

  • USMC | DRB | 2007_Marine | MD0701265

    Original file (MD0701265.rtf) Auto-classification: Denied

    Applicant’s Request: Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive: USMCR (DEP)19951229 - 19960909 Period of Service Under Review: Date of Enlistment: 19960910Period of enlistment: Years MonthsDate of Discharge: 20000224Length of Service: 03 Yrs 05 Mths15 DysEducation Level: Age at Enlistment:AFQT: 81MOS: 2141Highest Rank: LCPLProficiency/Conduct marks (# of occasions): 4.5(9)/ 4.5(9)Awards and Decorations (per DD 214):SSDR, AFEM, LOA,...