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USMC | DRB | 2010_Marine | MD1000164
Original file (MD1000164.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20091016
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)       20031020 - 20031026     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20031027     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070517      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 22 D a y ( s )
Education Level:        AFQT: 46
MOS: 3531
Proficiency/Conduct M arks (# of occasions): /   Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle CoC (Individual award)

Periods of UA :

NJP:

SCM:

SPCM:

- 20060502 :       Art icle ( Wrongful use, possession, etc., of controlled substance), 3 specifications
         Specification 1: Wrongful distribution of marijuana on or about 20060203
         Specification 2: Wrongful distribution of marijuana on or about 20060217
         Specification 3: Wrongful possession of marijuana on or abut 20060303
         Sentence : CONF 6 months (20060303-20060 803 , 15 3 days)

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:
         
         “ (15 3 ) 20030303-20030803 ”
        
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:           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 .

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 .       Decisional issues : The Applicant contends that his discharge characterization of service was excessively harsh and was resultant from what was an isolated incident in an otherwise honorable period of military service. Additionally, the Applicant contends that his diagnosis of Post - Traumatic Stress Disorder (PTSD) is a causal factor in his misconduct that warrants consideration for mitigation.

Decision

 Date: 20 10 1220            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 NDRB 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’s service record reflects a Commanding General, Eastern Recruiting Region enlistment waiver for a pre-service positive drug test at the Military Entrance Processing Station and a Recruiting Station Commanding Officer waiver for pre-service drug use – specifically marijuana use in excess of 4 times . Furthermore, the Applicant’s service record reflects that he acknowledged his complete understanding of the Marine Corps Policy Concerning the Illegal Use of Drugs, in writing, on the 20 October 200 3 . The Applicant’s record of service reflect ed neither 6105 retention-counseling warnings regarding his conduct nor any nonjudicial punishment s for violation of the Uniform Code of Military Justice (UCMJ) . However, the Applicant’s service record reflects a conviction at trial by Special Court - Martial for the following violations of the UCMJ:

•         Article 112a ( Wrongful distribution of Marijuana on 200 6 0203 )
•         Article 112a (Wrongful distribution of Marijuana on 200 6 0217)
•         Article 112a (Wrongful possession, etc of a controlled substance - Marijuana, on or about 200 6 0303) .

The Applicant had a pre-trial agreement in place in which the consideration given by the government was withdrawal of the charges from a trial by General Court - Martial to prosecution in the lesser Special Court - Martial venue. The Applicant elected to trial by judge alone and pled guilty to the charge of violation of Article 112a before a military judge . He was found guilty of the three specifications of violati ng Article 112a ( Wrongful use, possession, distribution of a controlled substance – to wit marijuana) . On 02 May 200 6 , having been found guilty at trial by Special Court - Martial, the Applicant was adjudged a Bad Conduct Discharge, confinement for 6 months, ordered a forfeiture of pay, and reduced in rank to Private (E-1). The Convening Authority ordered the adjudged punishment executed. The Applicant subsequently was confined for 93 days, having been credited 60 days of pre-tr i al confinement to his adjudged sentence. 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 that no clemency was warranted. In addition to the Applicant’s statement on the DD Form 293, he provided a Clinical Social Worker diagnosis of P TSD and copies of his promotion certificates and training certificates for the NDRB’s consideration.

: (Decisional) ( ) . The Applicant contends that his discharge characterization of service was excessively harsh and was resultant from what was an isolated incident in an otherwise honorable period of military service. Additionally, the Applicant contends that his diagnosis of PTSD is a causal factor in his misconduct that warrants consideration for mitigation and clemency . In response to the Applicant’s request for clemency, 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 - 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 conducted a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, the reports of the trial by Special Court-Martial , and the overall discharge process. Despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the N aval service in order to maintain good order and discipline - violation of Article 112a meets this standard. Violation of Article 112a ( Wrongful use, possession, distribution of a controlled substance ) is considered a serious offense, punishable by a Bad Conduct Discharge and confinement if adjudicated and awarded as part of a sentence by a S pecial or G eneral C ourt- M artial . Moreover, t he Applicant signed the USMC Drug Policy on 20 October 2003; h e was fully aware there is a zero tolerance policy for drug abuse , and he acknowledged the consequences of violating it in writing . Based on the charges and specifications of distribution contained in the record of trial , and the circumstances unique to this case, referral to trial by Special Court - Martial was warranted .

The Applicant contends his PTSD was a mitigating factor in his misconduct and, as such, warrants clemency . Though diagnosed with PTSD by the Base Brig Clinical Social Worker, t he evidence of record does not show that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. While the Applicant may believe that his diagnosis of PTSD was the underlying cause of his misconduct, the record clearly reflects a willful misconduct and a demonstrated unfit ness for further service - the Applicant participated in the distribution of illegal drugs to other Marines.

Based on the charges and specifications contained in the Special Court Martial, the NDRB determined that the Applicant had committed acts that constituted a significant and dramatic departure from the conduct expected from a service member that brought significant discredit upon the United States Military and the Naval service. The reason for discharge - convicted by special court-martial - is appropriate. B ased on this review, and the facts and circumstances unique to this case, the Board determined that the sentence awarded the Applicant at his court-martial was equitable and that relief on the basis of clemency was not warranted. As such, by a vote of 3-2 , the NDRB determined that the characterization of service shall remain “Bad Conduct Discharge” and the Narrative Reason for Separation shall remain “Court Martial.” 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 .
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 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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