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USMC | DRB | 2009_Marine | MD0902432
Original file (MD0902432.rtf) Auto-classification: Denied
ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090804
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)       20010629 - 20010729     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20010730     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20050113      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 14 D a y ( s )
Education Level:        AFQT: 49
MOS: 1341
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA: 20020722 – 2003030 4 (226 Days)
Periods of Confinement: 20040130 – 20040430 (92 Days)

 NJP:

SCM:

SPCM:

- 20040130 :       Art icle (UA 20020722 - 2003030 4 , 226 days)
         Article 112a ( Wrongful use of Drugs) , 2 specifications
         Specification 1: Wrongful use of C ocaine on or about 28 April 2002
         Specification 2: Wrongful use of Cocaine on or about 09 June 2002
         Sentence : for 120 days ( 20040130-20040430, 92 days )
         CA Action: The sentence is approved and, except for the BCD , will be executed, but the execution of that part of the sentence extending to all confinement in excess of 80 days is suspended.
CC:

Retention Warning Counseling :

Administrative Corrections to the Applicant’s DD 214

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

 “ (226) 20020722-2003030 4 , (92) 20040130-20040430) ”

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 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.       Nondecisional issue: Applicant seeks a change in characterization of service from Bad Conduct Discharge to General, Under Honorable Conditions in order to better his employment opportunities.

2.       Decisional issue : ( Clemency ) Applicant contends that his misconduct was a youthful and isolated set of incident s , in his past, and not indicative of his character.

Decision

Date: 20 10 0917            Location: Washington D.C .         R epresentation :

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

 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. With respect to a discha rge adjudged by a 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. 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 case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.

The Applicant ’ s record of service is marred with a Special Court - Martial conviction for violations of the Uniform C ode of Milita ry Justice (UCMJ); specifically, violation of Article 86 (Unauthorized Absence – Absent without leave for a period of 226 days) and violation of Article 112a (Wrongful use of illegal drugs – 2 separate specifications of wrongful use of cocaine). The Applicant ’ s initial entry into the Marine Corps included a Recruiting Station , Commanding Officer waiver for pre-service use of m arijuana and a Command ing General , Western Recruiting Region wa i ver for drug involvement, other drug us ag e . Furthermore, t he Applicant signed the USMC Drug Policy on June 27, 2001 , acknowledging that he was fully aware of the Marine Corp s policy of zero tolerance for drug abuse . H e acknowledged the consequences of violation of that policy in writing prior to entry .

Violation of Article 112a is an offense requiring mandatory processing, regardless of time in service or grade , usually resulting in an administrative separation with an unfavorable characterization of discharge. Commanders may also pursue confinement and punitive discharge through a S pecial or G eneral C ourt- M artial. Additionally, violation of Article 86 (Unauthorized absence in excess of 30 days) is a serious offense that also warrants a punitive discharge and confinement if adjudicated and awarded as part of a sentence by a S pecial or G eneral C ourt -M artial . In this specific case, t he C ommand refer red the Applicant to a Special C ourt - M artial instead of opting for the more lenient a dministrative discharge process .

The Applicant signed a pre-trial agreement, pled guilty at a Special Court - Martial, was found guilty in trial by judge alone, and adjudged a sentence of a Bad Conduct Discharge, confinement for 120 days, forfeiture of pay, and reduction in rank. The case was reviewed and affirmed by the U.S. Navy–Marine Corps Court of Criminal Appeals. Additionally, the Naval Clemency and Parole Board reviewed the case and determined no clemency was warranted.

: (Nondecisional) The Applicant seeks clemency for a change in characterization of service from a Bad Conduct Discharge to General, Under Honorable Conditions in order to better his employment opportunities. This is an issue that the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. 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 clemency based on equity of the discharge. There is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. The Applicant is directed to the Addendum , specifically the paragraph concerning Employment and Educational opportunities.

Issue 2: ( Equity) RELIEF NOT WARRANTED. Applicant contends that his misconduct was a youthful and isolated set of incident s , in his past, and not indicative of his character . In response to the Applicant’s clemency request, relevant and material facts stated in a trial by court-martial are presumed by the NDRB to be established facts. 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. The NDRB determined that the Applicant's youth or age was not a mitigating factor in his misconduct. The Applicant had successfully completed both Marine Corps Recruit Training and the School of Infantry and had successfully check ed into his Fleet Marine Force Battalion - filling a n important billet as a Engineer Equipment Mechanic - with a unit preparing for possible d eployment in support of combat operations.

The Applicant’s misconduct includes two confirmed uses of cocaine and an extensive period of unauthorized absence . Aft er the first admitted use of cocaine , the Applicant provided a urinalysis sample for testing by the Navy Drug lab. Following a positive confirm ation of cocaine use to his command, he continued his willful misconduct and blatant disregard for military regulation with a second use of cocaine – again confirmed positive by Naval Drug lab urinalysis test. Knowing that he was pending charges for violations of Article 112a of the UCMJ for his positive confirmation of illegal drug use, the Applicant absented himself from his unit for a period of 22 6 days . The Applicant was declared a deserter by the Marine Corps after the first 30 days of being absent from his unit .

The reason for discharge, convicted by special court-martial, is absolutely appropriate. Additionally, the NDRB found that the evidence of record did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded. The NDRB conducted a thorough review of the available evidence, to include the Applicant’s pre-service drug waivers; written acknowledgment of the Marine Corps Policy for Drug Abuse; his Summary of Service ; Service Record Entries ; the Verbatim transcript of the Special Court-Martial proceeding ; the overall d ischarge p rocess ; and the post - service conduct submitted by the Applicant . Based on this review, t he Board found clemency was not warranted and the sentence awarded the Applicant at his court-martial was appropriate for the offenses committed .
Summary: After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Verbatim Transcript of Trial by Special Court - Martial, and the personal statement submitted by the Applicant, t he Board found clemency was not warranted . The sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed. Therefore, the awarded characterization of service shall remain BAD CONDUCT DISCHARGE and the narrative reason for separation shall remain COURT MARTIAL.

The Board acknowledges the fact the Applicant wants to better his life for both himself and his family, however , he has failed to provide any post-service documentation in support of his request. The desire for a better life, by itself, is not sufficient reason for the Board to grant clemency.

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his discharge. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Employment and Educational Opportunities , 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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