Upgrade.Vet

USMC | DRB | 2010_Marine | MD1000050

Original file (MD1000050.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20091002

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)       20000128 - 20000214     Active: 20000215 – 20031005 HON

Period of Service Under Review:
Date of Current Enlistment: 20031006     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080423      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 17 D a y ( s )
Education Level:        AFQT: 68
MOS: 1341
Proficiency/Conduct M arks (# of occasions): / Fitness R eports:
Awards and Decorations ( per DD 214):      Rifle Pistol (2) (Iraq) (Iraq) PUC CoC (Individual award) (2) MM (2)

Periods of UA :

NJP:

- 20051213 :       Article (Driving under the influence of alcohol with a BAC of 0.11)
         Awarded : Susp ended:

SCM:

- 200700227 : Article 112a (Wrongfully use cocaine)
                  Sentence: RIR FOP CONF 30 days (20070727-20070322, 24 days)

SPCM:

- 20070815 :       Art icle (Wrongful use of a controlled substance, cocaine), 5 specifications
         Specification 1: Wrongful use of cocaine on 20070109 .
         Specification 2: Wrongful use of cocaine on 20070217.
         Specification 3: Wrongful use of cocaine on 20070401.
         Specification 4: Wrongful use of cocaine on 20070515.
         Specification 5: Wrongful use of cocaine on 20070109.
         Sentence : CONF 100 days (20070619-20070 0909 , 83 days)

CC:

Retention Warning Counseling :

- 20061130 :       For failing to properly maintain body composition standards as required.
- 20070206 :       For article 112a, wrongful use of illegal drugs, cocaine.

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 .

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 contends his discharge was inequitable , because he asked for help from his command and did not receive it.
2.       The Applicant contends his command did not allow him to attend drug rehabilitation treatment.
3. The Applicant contends his misconduct was an isolated incident in six years of service.
4.       The Applicant contends that another sergeant who had a DUI was not reduced in rank like the Applicant was.

Decision
Date: 20 10 1118          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. 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’s record of service included 6105 counseling warnings, for o f the Uniform Code of Mil itary Justice (UCMJ): Article 92 (Failure to obey an order or regulation, driving under the influence of alcohol with a .11 BAC , 1 specification) , for of the UCMJ: Article 112a (Wrongful use, possession etc of a controlled substance: cocaine, concentration NFIR , 1 specification ) , and one special court-martial for violations of the UCMJ : Article 112a (Wrongful use, possession etc of a controlled substance: cocaine, concentrations NFIR, 5 specifications) . The Applicant also had a pre-service drug waiver for using marijuana prior to entering the Marine Corps and acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 26 January 2000 . Based on the Applicant’s conviction and sentence at special court-martial, he was separated with a Bad Conduct characterization of service. The Applicant provided service documents and certifications but no documentation to support a post-service conduct review.

: (Decisional) ( ) . The Applicant contends his discharge was inequitable , because he asked for help from his command and did not receive it. The Applicant also contends he was not allowed to attend drug rehabilitation. The record shows the Applicant did receive treatment when h e completed Intensive Outpatient Treatment on 17 May 2007. The Applicant was found guilty of cocaine use, h is court-martial conviction was upheld through the appeals process , and the sentence fully executed. The NDRB found no evidence of inequity or impropriety. C lemency denied.

: (Decisional) ( ) . The Applicant contends his misconduct was an isolated incident in six years of service. The NDRB advises the Applicant that despite a service member’s prior record of service , certain serious offenses, even though isolated, warrant separation from the Marine Corps in order to maintain proper order and discipline. The Applicant was found guilty of cocaine use at NJP and five specifications of cocaine use at special court-martial. The Applicant’s misconduct is clearly not isolated or mitigated. Clemency denied.

4 : (Decisional) ( ) . The Applicant contends that another sergeant who had a DUI was not reduced in rank like the Applicant was. Another Marine’s misconduct has no bearing on the Applicant’s case. The NDRB reviewed the circumstances surrounding the Applicant’s case and found that the awarded punishment was in line with that received by other Marines with similar misconduct. Clemency 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 . 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 | 2010_Marine | MD1000050

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