Search Decisions

Decision Text

USMC | DRB | 2009_Marine | MD0901433
Original file (MD0901433.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090501
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)       20030322 - 20031116     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20031117     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070531      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 08 D a y ( s )
Education Level:        AFQT: 33
MOS: 3521
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Period of CONF: 20050727 – 20050902 (35)

NJP: SCM:

SPCM:
- 20050727 :       Art icle 112a ( Drug abuse, wrongful use of a controlled substance: Marijuana - 2 specifications )
         Sentence : BCD RIR E-1 CONF 45 DAYS

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 . The Applicant seeks service benefits (VA home loan).
2. The Applicant believes his post-service conduct is worthy of consideration for clemency.      

Decision

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

By a vote of the Characterization shall DISCHARGE .
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. 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 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. 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 . The Applicant’s record of service included a Special Court-Martial (SPCM) for o f the Uniform Code of Military Justice (UCMJ): Article 112a (Drug abuse, wron gful use of a controlled substance ( Marijuana ) on 2 separate occasions ). The Applicant required a pre-service dr ug waiver for using marijuana three times prior to entering the Marine Corps, and acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 7 March 2003 . Based on the offense(s) committed by the Applicant, command sent him before a SPCM . He was found guilty on multiple charges, sentenced and given a punitive discharge.

: (Nondecisional) The Applicant seeks service benefits (VA home loan) . 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.
: (Decisional) ( ) . The Applicant believes his post-service conduct is worthy of consideration for clemency. The Applicant stated he works as a broadband technician and has worked hard to overcome extreme debt, which was due to an injury that di dn’t enable him to work. He also noted that he was getting married and wanted to start a family. The Board appreciates that the Applicant wants to better his life for both himself and his family ; however , he has failed to provide any post-service documentation (verifiable) in support of his request despite being encouraged to do so via correspondence from the NDRB and the DD 293 worksheet . The desire for a better life, by itself, is not sufficient reason for the Board to grant clemency. Clemency denied.

Summary: 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. 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. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Service Benefit s 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

Similar Decisions

  • USMC | DRB | 2008_Marine | MD0801486

    Original file (MD0801486.rtf) Auto-classification: Denied

    The Applicant contends his discharge should be upgraded based on his record of service which was good apart from a single period of misconduct. The Board determined 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 Pertinent Regulation/Law A. Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO...

  • USMC | DRB | 2008_Marine | MD0801961

    Original file (MD0801961.rtf) Auto-classification: Denied

    The Board determined the discharge characterization should be upgraded to an “Honorable” with the narrative reason for the discharge, “Condition Not a Disability” to remain as issued. 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...

  • USMC | DRB | 2012_Marine | MD1201738

    Original file (MD1201738.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.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...

  • NAVY | DRB | 2012_Navy | ND1201947

    Original file (ND1201947.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant wants to upgrade his RE Code. Representation: By a vote of the Characterization shall .By a vote of the Narrative Reason shall .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...

  • NAVY | DRB | 2011_Navy | ND1100178

    Original file (ND1100178.rtf) Auto-classification: Denied

    Representation: By a vote of the Characterization shall .By a vote of the Narrative Reason shall .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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include...

  • USMC | DRB | 2010_Marine | MD1001781

    Original file (MD1001781.rtf) Auto-classification: Denied

    The Applicant was separated from the Marine Corps on 3 Feb 2006 with an Under Other Than Honorable Conditions discharge due to Misconduct (Drug Abuse). A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries and the administrative separation process, the Board found Therefore, the awarded characterization...

  • NAVY | DRB | 2013_Navy | ND1301288

    Original file (ND1301288.rtf) Auto-classification: Denied

    The NDRB voted to upgrade the characterization of service to Honorable based on the absence of misconduct and overall performance of the Applicant, but the NDRB determined his narrative reason for separation was appropriate. Relief denied.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 but the narrative reason for...

  • NAVY | DRB | 2009_Navy | ND0901679

    Original file (ND0901679.rtf) Auto-classification: Denied

    ” 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. 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. Additionally, the NDRB has no authority to upgrade a...

  • USMC | DRB | 2010_Marine | MD1000792

    Original file (MD1000792.rtf) Auto-classification: Denied

    The Applicant’s service record clearly documents the misconduct for which the Applicant was discharged. Relief denied.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 . ” Additional Reviews : After a document review has been conducted, former members are eligible for a...

  • NAVY | DRB | 2015_Navy | ND1500905

    Original file (ND1500905.rtf) Auto-classification: Denied

    The Applicant’s service record was incomplete and separation notification and Commander’s letter requesting separation were not in the Applicant’s service record. 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 remain GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain PATTERN OF...