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USMC | DRB | 2009_Marine | MD0902486
Original file (MD0902486.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090909
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)       20020911 - 20030804     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20030805     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070501      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 29 D a y ( s )
Education Level:        AFQT: 35
MOS: 1141
Proficiency/Conduct M arks (# of occasions): ( Inc ) / ( Inc )      Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle C o C LoA

Periods of CONF : CONF 20051128 - 20051202 (4)
                  CONF 20060223 - 20060316 (24)

 NJP:

- 20041017 :      Article (Willfully disobey a Corporal) , 20041009
         Article (Failure to obey order), 20041009
         Awarded : Susp ended:

SCM:

SPCM:

- 20060223 :       Article (Wrongful use, possession, etc of controlled substance), 2 specifications
         Specification 1: Wrongful use of marijuana, o/o 20051011
         Specification 2: Wrongful use of marijuana, o/o 20051107
          Sentence : CONF (33 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:           Rehabilitation/Treatment:                  Criminal Records:       
         Personal Documentation :           Community Service:                References:     
         Department of VA letter:                  Oth er Documentation:    
                  Additional Statements :
         From Applicant:            From /To Representation:            From /To Congress m ember :        

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 .



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

Applicant’s Issues

 1.       Applicant seeks upgrade to reenlist in the U.S. Marine Corps.
2.       Applicant seeks clemency on the basis of equity in consideration of his record of service and isolated misconduct.

Decision

Date : 20 1 1 02 10            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 Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. 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. 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 identif ied one decisional issue for the Board ’s consideration . Th e Board complete d a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity. The Applicant’s record of service did not include any 6105 retention counseling warnings but did contain for o f the Uniform Code of Military Justice (UCMJ): Article 91 ( Willfully disobeying a noncommissioned officer, a Corporal , 9 Oct 2004 ) and Article 92 ( Failure to obey an order from a Sergeant , 9 Oct 2004) and for of the UCMJ: Article 112a ( Wrongful use, possession, etc of controlled substance, marijuana, 2 specifications: Wrongful use o/o 11 Oct 2005 and 7 Nov 2005 as evidenced by positive urinalysis test results). T h e Applicant did not have a pre-service drug waiver for using marijuana prior to entering the Marine Corps , but he did sign and acknowledge his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs during enlistment accession processing on 10 Sep 2002 . Based on the offenses committed by the Applicant, command chose not to administratively process him for separation , but instead refer red charges on him for trial by Special Court-Martial . There was no evidence in the record to determine whether or not the Applicant considered submitting a request for administrative separation in lieu of trial to the Convening Authority.

: (Nondecisional) The Applicant seeks an upgrade to reenlist in the U.S. Marine Corps. 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 B oard for Correction of Naval Records 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.
: (Decisional) ( ) . The Applicant seeks clemency on the basis of equity in consideration of his record of service and isolated misconduct. The Board conducted a thorough examination of the Applicant’s record of service to determine whether his in-service performance warranted an upgrade to his Bad Conduct Discharge. The Applicant’s record indicated that prior to his Special Court-Martial conviction in Feb 2006, he had completed a combat tour to Iraq in Mar 2005 , had been promoted to the rank of Lance Corporal, and had proficiency and conduct averages of 4.3 and 4.2 , respectively. Approximately six months after his return from deployment, in a period of less than 30 days, he tested positive twice for illegal use of marijuana on 11 Oct and 7 Nov 2005 , which is a violation of UCMJ Article 112a. Violation of Article 112a is punishable by up to two years of confinement and a Bad Conduct or Dishonorable Discharge if awarded at trial by Special or General Court-Martial. Based on receiving two positive urinalysis test results for illegal drug use, his command chose not to process him for administrative separation, but instead to refer him to trial by Special Court-Martial. After thorough questioning from the M ilitary Judge regarding the Applicant’s decisions, intent , and the circumstances surrounding his illegal drug us age , he found the A pplicant guilty and sentenced him to confinement for 33 days, reduction in rank to E-1 , and a Bad Conduct Discharge. The Applicant’s case was submitted on appeal to the Navy-Marine Corps Court of Criminal Appeals and after thorough review affirmed the Convening Authority’s findings and sentencing as adjudged. The Board, after careful consideration of all the evidence and circumstances surrounding this case, found that this issue did not provide a basis for which relief could be granted.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries and the Special Court - Martial Record of Trial , the Board found the discharge was proper and equitable at the time of discharge. 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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