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USMC | DRB | 2009_Marine | MD0901412

Original file (MD0901412.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20090422

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)       20010614 - 20020106     Active:

Period of Service Under Review:
Date of Current Enlistment: 20020107     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070525      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 13 D a y ( s )
Education Level:        AFQT: 76
MOS: 5711
Proficiency/Conduct M arks (# of occasions): /          Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (Kuwait/Iraq) (2)

Period of CONF : Pre-trial: 20040326-20040616 (83 days)

NJP:
- 20020330 :       Article 128 (A ssault )
         Awarded : Susp ended:

SCM:

SPCM:

- 20040617 :       Art icle 86 (UA 20031126-20040326 (121 days ) )
         Article 112a (Drug abuse), 3 specifications
         Spec 1: Wrongfully us ing methamp h etamines 20031024
         Spec 2: Wrongfully us ing methamphetamines 20031027
         Spec 3: Wrongfully us ing marijuana 20031027
         Additional Charge:
         Article 112a (Wrongfully distribut ing methamphetamines between 20031201-20040131 )
         Sentence : BCD CONF 9 MONTHS FOP RIR E-1

CC:

Retention Warning Counseling :

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 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 .

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

Applicant’s Issues

1. Decisional issue . The Applicant believes he used drugs to self-medicate after duty in Iraq.
2. Decision issue . The Applicant believes his unit unfairly tested him twice and did nothing to support him.
3. Decisional issue . The Applicant asks for consideration of his post service conduct.

Decision

Date: 20 10 0114 Location: Washington D.C . R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall 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 one NJP for o f the Uniform Code of Military Justice (UCMJ): Article 128 (Assault) and one Special Court-Martial for violations of U CMJ Art icle 86 (UA 20031126-20040326 (121 days)), Article 112a (Drug abuse), 3 specifications (Spec 1: Wrongfully us ing methamphetamines 20031024, Spec 2: Wrongfully us ing methamphetamines 20031027, Spec 3: Wrongfully us ing marijuana 2003102, and Article 112a (Wrongfully distribut ing methamphetamines between 20031201-20040131 . Pri or to entering the Marine Corps , on 17 September 2001 t he Applicant acknowledged complete understanding of the Marine Corps Policy Con cerning Illegal Use of Drugs . Based on the o ffenses committed by the Applicant, command referred him to a Special Court Martial where he was found guilty and was sentenced to a Bad Conduct Discharge, confinement for 9 months, forfeiture of pay and reduction in rank to private.

Issue 1: Decisional ( ) . . The Applicant claims he used drugs to self-medicate after his tour in Iraq. Review of his service records reveal the Applicant served in Kuwait from February 2003 to March 2003 and then in Iraq from March 2003 to June 2003. In his court-martial proceedings, he stated he took drugs as a result of marital problems; that he dishonored himself, his family and the Marine Corps by his bad decisions ; that he had no excuses for his behavior and that he accepted full responsibility for his actions. At no time did he claim to be suffering from adjustment problems or any form of PTSD as a result of service in Iraq. Aside from a reference letter from his girl friend’s mother, the Applicant provides no documentation from any medical professional to include a Veterans Affairs assessment to support his service - related claims. Clemency is an act of leniency that reduces the severity of the punishment imposed. The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Court-Martial proceedings, 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.

Issue 2: Decisional (Propriety). . The Applicant states he was unfairly drug tested twice for the same drug use offense, which resulted in duplicate charges. Review of his court-martial proceedings reveal the Applicant admitted under oath to taking methamphetamine on two separate occasions, on or about Friday 24 October 2003 and 27 October 2003. He freely admits he went UA from his unit on 26 November 2003 and remained so until 25 March 2004. Additionally, the Applicant admitted to using marijuana and to distribut ing methamphetamine s to another service member during this period . Aside from his own statement, h e provides no evidence that he asked for and was refused assistance from his unit for his drug problem. Based on his record of trial, the Board determined relief is not warranted.

Issue 3: (Decisional (Equity) . RELIEF NOT WARRANTED. The Applicant states today he is a devoted father, in a stable relationship and is not using drugs. Besides the Applicant 's statement on the DD Form 293 and two letters of reference, he failed to provide any additional documentation and evidence on his behalf to support a post-service conduct review. On page 4, Item 8, in the instructions for completion of DD Form 293, the Applicant is notified to submit evidence "which substantiate or relate directly to your issues in Item 6" (Issues: Why an upgrade or change is requested and justification for the request). Additionally, upon receipt of the Applicant's DD Form 293, the NDRB mails an acceptance letter that includes Information Concerning Review Procedures , which discusses the submission of additional documents in paragraph 3, Submission of Evidence , and in the last section on page 4, Information Pertaining to a Review Based Upon Post-Service Conduct .

The Applicant should provide documentation which could include but not limited to: additional letters of personal references and verifiable employment record /letter of recommendation from his employers , evidence of a drug free life style (completion of rehab/proof he attended Narcotics Anonymous meetings) , certification of non-involvement with civil authorities , evidence of financial stability (home ownership/home rental history, credit card payments) , and documentation of community /church service . The Applicant should be aware completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post service conduct mitigates the reason for the characterization of discharge.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and 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 , April 25, 2007 . 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 | MD0901412

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