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USMC | DRB | 2009_Marine | MD0901230

Original file (MD0901230.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20090407
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)       19950509 - 19950718     Active:

Period of Service Under Review:
Date of Current Enlistment: 19950719     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19970512      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 24 D a y ( s )
Education Level:        AFQT: 46
MOS: 3051
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle MM

Periods of UA / CONF : UA: 0801, 19960930 - 1830, 19961029 ( 29 days) CONF:

NJP:

SCM:

SPCM:

CC:

Retention Warning Counseling :

- 19970124 :       For your intentional absent from your designated place of duty during the period 19960830 through 19960930, without authorization. This matter has yet to be adjudicated because of extenuating factors which will have to consider before appropriate action can be taken in your case. Knowing this to be the case, it was assumed that you would make every effort to avoid any form of trouble; but his proved not to be the case on 19961116 you were picked up by the Military Police for your involvement in an altercation out in town. Although there were no formal charges brought against you for your involvement, this is not what is expected from a Marine who is already pending legal administrative action for previous offense.

- 19970124 :       For violation of the Marine Corps substance abuse policy. On 19970122 , test results were received by this command from the Naval Drug Laboratory in Jacksonville, FL identifying your urine sample as positive for traces of THC and cocaine.

Administrative Corrections to the Applicant’s DD 214

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

         “ MARCORSEPMAN 6419 ”
         “ KFS ”
         “ 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 P1900.16E), 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 .

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

Applicant’s Issues

1. Mental condition mitigates misconduct.

Decision

Date: 20 0 9 0226 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 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 g overnment al a ffairs 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 . The Applicant was separated from the Marine Corps after requesting separation in lieu of tr i al by court-martial (SILT) in response to being charged with violation of Article 112a ( Wrongful use, possession etc of a control led substance, 2 specifications: marijuana and cocaine, amount s NFIR) and Article 86 (Unauthorized absence (UA) , 1 specification : 29 days , surrendered ) . The Applicant signed SILT documents dated 21 Feb 1997 , prepared in accordance with regulations , and found to be sufficient in law and fact by competent legal authority. In accordance with regulations, the Applicant elected to be represented by qualified counsel and submitted a written statement. He also fully understood the elements of the offense s for which he was charged and admit ted his guilt. The Applicant further certified a complete understanding of th e negative consequences of his actions and that his characterization of service could be Under Other Than Honorable Conditions (OTH), which might deprive him of virtually all vet erans' benefits based upon his c urrent enlistment, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing. T he Applicant did not have a pre- service drug waiver. The Applicant acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 2 May 1995 . Due to the Article 112a offense committed by the Applicant, processing for administ rative separation is mandatory. The Applicant’s request for SILT was approved by the convening authority on 25 April 1997.

: (Decisional) ( ) . The Applicant contends his mental state at the time of the of fense s mitigates his misconduct. The record shows the Applicant was the victim of forcible oral sodomy and indecent assault at the hands of another male Marine in February 1995 . The Applicant claims his misconduct stemmed from being unable to properly handle what had happened to him. The Applicant testified at a n Article 32 hearing and a general court-m artial as a witness against the perpetrator of thi s crime in January 1997, which the record indicates was a traumatic experience for him. The Applicant was UA for 29 days from 30 Sept to 29 Oct 1996. The Applicant received a 6105 entry on 24 Jan 1997 regarding his recent UA period in which the command acknowledged that there were “…ext enuating factors … to be considered before appropriate action can be taken …” The record is unclear as to the details of these factors. The Applicant’s medical records reveal he sought assistance from his command chaplain and was referred to the base mental health clinic where he was found to be psychologically fit and suitable for duty . It is clear from the Applicant’s statement, submitted as part of his request for SILT, that he smoked marijuana laced with cocaine on more than one occasion during his 29 day period of UA. Medical records reveal the Applicant “… admitted using marijuana and cocaine prior to enlistment, any time he was home on leave and all day every day while he was UA. In spite of this , he has not tested positive on urine drug testing. He reported using these drugs to block out the memory of the assault. ” The NDRB noted the Applicant did not have a pre- service drug waiver because he failed to disclose his pre- service illegal drug use on his enlistment documents by answering “no” to use of both marijuana and other drugs. This omission is a violation of Article 83 (Fraudulent enlistment) and could have resulted in additional charges under the UCMJ.

The NDRB carefully considered the Applicant’s mental state dur ing the time of the offenses. The Board recognizes this period as a very stressful time in the Applicant’s life. However, based on legal and medical records, the NDRB concluded the challenges faced by the Applicant during the time in question did not fully mitigate his misconduct given the apparent habitual nature of his drug use during less than two years of service, his twenty-nine day UA , and failure to disclose p rior drug use upon enlistment. C ertain serious offenses warrant separation from the Navy in order to maintain proper order and discipline. Violation of Article 112a is one such offense. This 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. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no inequity in the characterization of the Applicant’s service.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and record entries, discharge process and evidence submitted by the Applicant , the Board found the discharge was proper and equitable. Therefore, the awarded characterization of service shall UNDER OTHER THAN HONORABLE CONDITIONS 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. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct .

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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USMC | DRB | 2009_Marine | MD0901230

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