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USMC | DRB | 2009_Marine | MD0900387
Original file (MD0900387.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20081201
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request: Characterization change to:        
                  Narrative Reason change to: NONE REQUESTED

Summary of Service

Prior Service:
 Inactive: USMCR (DEP)     20011117 - 20020630     Active:  

Period of Service Under Review:
 Date of Enlistment: 20020701     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20050601      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 01 D a y ( s )
Education Level:        AFQT: 49
MOS: 3043
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle Pistol

NJP:

- 20040220 :      Article 86 (UA – missed dental appointment )
                   Awarded: Suspended:

- 20040727 :      Article 86 ( UA – 6 hours )
         Article 92 ( Failure to obey an order or regulation: 4 specifications )
        Article 111 (Reckless driv ing on 20040512 and 20040714( 2 specifications ))
                  Awarded: Suspended:

- 20040827 :      Article 92 ( Failure to obey an order or regulation – 2 s pecifications )
                  Awarded: Suspended:

- 20041104:      Article 86 (Unauthorized absence)
        Article 91 (Insubordinate conduct toward a warrant officer or noncommissioned officer)
         Article 134 (No details)
                  Awarded: RIR Suspended: NONE
SCM: CC:

SPCM: 1 − p ending
Per charge sheet dated 20050330 (Article 86 – UA, 1 day, and Article 112a – Wrongful use of c ocaine)
                                    Sentence: Applicant chose SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL
Retention Warning Counseling:

- 20040214 : For unauthorized absence on 20050210 and wrongful use of illegal substance.


Retention Warning Counseling: (cont)
- UNDATED : For misuse of government property. SNM on or about 20041105 was looking at a pornographic site
while on a government computer. This kind of conduct will not be tolerated.

- 20040217 : For minor disciplinary actions (documented series of at least 3 minor disciplinary infractions) during
current enlistment which would have been disciplined, under Art 15 of the UCMJ. Pattern of misconduct
(pattern of more serious infractions including 2 or more serious infractions) or instances of conduct
prejudicial to good order and discipline within one enlistment.
Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         Block 4a, “ Private ”
Block 4b, “E-1 ”
“IN LIEU OF TRIAL BY COURT MARTIAL ”

The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.
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 :

Pertinent Regulation/Law

 A. Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY 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)(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 s of the UCMJ : Article 86 ( UA ) ; Article 91 (Insubordinate conduct) ; Article 92 (Failure to obey an order or regulation) ; Article 111 (Reckless driving ) ; Article 112a ( Drug use, w rongful use of controlled substance s ) ; and Article 134 (General article) .



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

Applicant’s Issues

 1. Double jeopardy .
2. Never debriefed when he returned from Iraq.
3. Went UA to determine results of a paternity test and was under “mental distress. ”

Decision


 Date: 20 0 9 0312            Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
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. In the majority of the cases, in which offenses occur in a civilian jurisdiction, the military usually steps aside and allows the military member to be tried by civilian courts. However, t his does not preclude the military from taking action to maintain good order and discipline within its ranks. If the military takes action on a Marine prior to civilian action, it is not considered “double jeopardy. ” The Board determined the Applicant’s issue is without merit and an upgrade would be inappropriate.

: ( ) . The Applicant contends he was never debriefed upon his return from his deployment to Iraq , was trying to determine the results of a paternity test , and was under mental distress. I n 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 was marred by three retention warnings, four NJPs , and he was pending a SPCM . Rather than face court-martial, the Applicant chose to separate i n l ieu of trial by court-m artial for violations of the Uniform Code of Military Justice (UCMJ) : Article 86 ( UA ) ; Article 91 (Insubordinate conduct) ; Article 92 (Failure to obey an order or regulation) ; Article 111 (Reckless driving) ; Article 112a ( Drug use, w rongful use of a controlled substance , cocaine 123 ng/ml ) ; and Article 134 (General article). The Applicant did not require a pre-service drug waiver, but did sign the Statement of Understanding − Marine Corps Policy Concerning Illegal Use of Drugs on 16 November 2001. The NDRB advises the Applicant certain serious offenses warrant sepa ration from the service 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 an administrative discharge.

The Board could find no connection between the Applicant’s issues and his misconduct, and the Applicant provided no evidence to support his contention. At no time is the use of illegal drugs acceptable, regardless of the turn-of-events in life the Applicant may encounter. On 26 April 2005, the Applicant requested discharge for the good of the service to escape trial by court-martial. In the request the Applicant noted his counsel had fully explained the elements of the offenses for which he was charged and that he was guilty of the offenses. He further certified a complete understanding of the negative consequences of his actions and that characterization of service could be under other than honorable conditions. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. The Board determined an upgrade would be inappropriate.
For the Applicant’s edification, 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. Documentatio n 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 rev iewed 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 statement o n the DD Form 293, he provide d a character reference from a past employer and a criminal record from the state of North Carolina, Onslow County . 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 charact erization 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 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, 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

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