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USMC | DRB | 2009_Marine | MD0902241

Original file (MD0902241.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20090813

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)       19980422 - 19980428     Active:

Period of Service Under Review:
Date of Current Enlistment: 19980429     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 199907 09      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 11 D a y ( s )
Education Level:        AFQT: 45
MOS: 0331
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:

SCM:

- 19990415 :       Art icle (Drugs - marijuana)
         Sentence :

SPCM:

CC:

Retention Warning Counseling :

- 19990126 :       For personal condition and inability to physical ly participate in training activities

- 19990208 :       For failure to comply with the UCMJ and illegal drug usage.

Administrative Corrections to the Applicant’s DD 214

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

         “ MISCONDUCT ”

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 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective
31 January 1997 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 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.       Applicant contends that slow processing of a “pending administrative discharge” for a pre-service existing medical condition allowed his transfer to Camp Pendleton and subsequent administrative discharge for misconduct.
2.       Applicant contends he was not represented by counsel at “ s pecial c ourt m artial. ”
3 .       Applicant contends he was incorrectly “ blamed ” for transporting an illegal substance on base and was the only Marine of the four to have received a harsh punishment .
4 .       Applicant contends he should have been sentenced to a “probationary period” to allow opportunity to rehabilitate instead of being separated from service.
5.       Post-service conduct.

Decision

Date: 20 10 0 819          Location: Washington D.C .         R epresentation :

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 g overnment al a ffairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant presented four decisional issues to the Board. T he Board conducted a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included 6105 counseling warnings for physical condition (inability to physically participate in training activities) and illegal drug use and Summary Court -M artial for o f the Uniform Code of Military Justice (UCMJ): Article ( Wrongful use, possession, etc. , of controlled substance s). The Applicant a pre-service drug waiver for using marijuana prior to entering the Marine Corps and he acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 21 April 1998 . Based on the Article 112a violation , processing for administ rative separation is mandatory. Initially, the command pursued a S pecial C ourt -M artial. Subsequent to notification of pending Special Court-Martial , the Applicant, after consultation with counsel, accepted a pretrial agreement with the government and entered a guilty plea for violation of UCMJ Article 112a. In exchange, the government agreed to limit legal prosecution to a S ummary C ourt -M artial. The Applicant waived right to request an administrative discharge board . The NDRB did not have the Applicant’s complete administrative separation package available for review to determine whether or not the Applicant waived rights to submit a written statement and request a General Court-Martial Convening Authority review .

: (Nondecisional) Applicant contends that slow processing of a “pending administrative discharge” for a pre-service existing medical condition allowed his transfer to Camp Pendleton and subsequent administrative discharge for misconduct. There is documentation in the Applicant’s service record that annotates back pain and diagnosis of scoliosis. Additionally, the 1 ^st BN, 1 ^st Marine Regiment, 1 ^st MarDiv Surgeon letter, 14 Dec 98, recommended processing for administrative separation to the Bravo Company Commander. No other documentation exists within the record to specify what decision was made on that recommendation . Nevertheless, DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. 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 B oard for Correction of Naval Records can grant this type of narrative reason change.

: (Decisional) ( ) . The Applicant contends he was not properly represented by counsel at special court - martial (SPCM). Documents located within the Applicant’s service record show the command was initially pursuing SPCM proceedings, but due to the conditions agreed to in a pretrial agreement between the Applicant and the U.S. Government, a summary court-martial (SCM) was conducted. The Manual for Courts Martial United States, Chapter XIII, Rule 1301, Summary Courts-Martial, section (e) Counsel, states “The accused at a summary court-martial does not have the right to counsel. If the accused has civilian counsel provided by the accused and qualified under R.C.M. 502(d)(3), that counsel shall be permitted to represent the accused at the summary court-martial if such appearance will not reasonably delay the proceedings and if military exigencies do not preclude it. ” Thus, based on the aforementioned facts, the Board presumed regularity in the conduct of governmental affairs in the prosecution of the Applicant in violation of UCMJ Article 112a.

: (Decisional) ( ) . The Applicant contends he was incorrectly “blamed” for transporting an illegal substance on base and was the only Marine of the four to have received a harsh punishment . The documentation within the Applicant’s service record does not specify the particular circumstances surrounding the violation of UCMJ Article 112a other than listing “ Illegal Drug Use ” and also does not specify involvement of the other service members as the Applicant alleges. Due to the Board not having the complete administrative separation package available for review and the fact the Applicant did not provide substantial or credible evidence to rebut the charge and subsequent conviction, the Bo ar d must assume regularity in the conduct of government al affairs in the prosecution and subsequent separation processing of the Applicant for violation of UCMJ Article 112a .

4 : (Decisional) ( ) . The Applicant contends he should have been sentenced to a “probationary period” to allow opportunity to rehabilitate instead of being separated from service. MCO P1900.16F MARCORSEPMAN, Chapter 6, Section 2, Para 6210 MISCONDUCT specifies: “Offenses involving drug abuse shall be processed for separation by reason of the appropriate drug abuse offense in paragraph 6210.5, as well as other applicable reasons in this manual.” Though argument was made by the Applicant that as part of his military court-martial sentencing a probationary period should have been considered , to allow for rehabilitation as with in civilian courts, there is no statutory law or regulation that allows for probationary sentencing within military courts. Furthermore, this argument is beyond the scope and mandate of the NDRB and the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption . After review of all documentation, the Board found the administrative separation, narrative reason for separation , and resultant characterization of service to be proper and equitable under the applicable directives.

5 : (Decisional) ( ) . The Applicant provided five letters of character reference. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation that provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in 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 s (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 completing higher education (official transcripts) ; and documentation of a drug - free lifestyle. C ompletion 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. Other than the letters of reference, the Applicant did not provide any documentary evidence on his behalf for post-service consideration. To warrant an upgrade , the Applicant’s post - service efforts need to be more encompassing.

In the Applicant’s package he states that he was awarded the Good Conduct Medal, which is not accurate . The Good Conduct Medal is awarded after 3 years of honorable service. The Applicant served for 1 year, 2 months, 11 days.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries , character references , and letters of clemency/mercy , 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. 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 Disable d American 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 their 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 | MD0902241

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