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USMC | DRB | 2009_Marine | MD0900714
Original file (MD0900714.rtf) Auto-classification: Denied

, ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090205
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)      19971219 - 19980222     Active: 

Period of Service Under Review:
 Date of Enlistment: 19980223      Age at Enlistment:
Period of Enlistment : Years Months
Date of Discharge: 20030103       H ighest Rank:
Length of Service: Year(s) Month(s) 11 D ay(s)
 Education Level:         AFQT: 43
MOS: 0311
Proficiency/Conduct Marks (# of occasions): ( ) / ( )   Fitness Reports:

Awards and Decorations (per DD 214):     Rifle (2d Awd)

Periods of UA/CONF: CONF: 20020802-20020926 (56 days)
NJP:
- 19990728 :      Article 92 (Failure to obey order)
         Awarded: Suspended:

SCM:    SPCM:   CC:

Retention Warning Counseling:

- 19990722 : For insubordinate conduct toward an NCO on 8 July 1999.
- 20020214: For the following deficiencies: While assigned to the 62 Area Guard on or about 2200 on 020214 SNM left
his post to take care of personal issues. By doing so it exhausted the security within the 62 Area Guard.

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 Representation:     From Congress member:

Other Documentation:


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

Applicant’s Issues

 1. Record of service.

Decision

 Date: 2009 0430             Location: Washington D.C.        R epresentation :

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

Issue 1: ( ) . The Applicant contends he is entitled to a discharge upgrade because of his record of service while in the Marine Corps. 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 was marred by two retention warnings and one NJP for violation of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order). Violation of this Article is considered as serious offense, punishable by punitive discharge, forfeiture of all pay and allowances and confinement for 2 years if adjudicated and awarded by a special or general court-martial.

In a court-martial specification dated 23 September 2002, the Applicant was charged with three violations of the UCMJ: Article 112a (Drug use, wrongful use of controlled substance, methamphetamine, cocaine, and distribution), 3 specifications; Article 134 (Wrongfully solicit to commit an offense under UCMJ) by distribution of controlled substance by asking a Marine if he would go into business with him; and Article 134 (Wrongfully communicated a treat to do physical harm and injury). Violations of these Articles are considered as serious offenses, punishable by a punitive discharge, forfeiture of all pay and allowances, and confinement for 3 years if adjudicated and awarded by a special or general court-martial. The Applicant mentions in his statement to the NDRB, “I have never used or sold drugs”. This statement is a false statement; a review of the Applicant’s service records revealed the Applicant admitted to pre-service drug use and required a drug waiver to enter into the Marine Corps.

The letters from the commanding officer and Trial Counsel, both dated 2 December 2002 stated there was insufficient evidence to support the drug issues on this case and it would not stand up in a court-martial. However, the command elected to accept the Applicant’s request for an “Under Other Than Honorable” conditions discharge in lieu of a trial by court-martial for the third offense mentioned above, Article 134 (Wrongfully communicated a treat to do physical harm and injury). The Applicant consulted with counsel and was fully advised of the implications of his request. The Applicant understood if discharged “Under Other Than Honorable” conditions, it might deprive him of virtually all veterans' benefits based upon his current enlistment and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered in any branch of the Armed Forces, or the character of discharge received there from may have a bearing. The Board determined the awarded discharge characterization was appropriate for the violation committed and an upgrade would be inappropriate.

 The NDRB is authorized to consider post-service factors in the re-characterization 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; 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 and his DD Form 293, the Applicant provided no documentation for review. 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. Should the Applicant feel his post service conduct becomes substantial enough to warrant 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, Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found

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. 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 92 (Failure to obey order) and Article 134 ( Wrongfully communicated a treat to do physical harm and injury).



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, 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. 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 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 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.
Employment/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 for 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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