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USMC | DRB | 2010_Marine | MD1000713
Original file (MD1000713.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20100112
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)       20020702 - 20020714     Active:  

Period of Service Under Review:
Date of Current Enlistment: 200207 1 5     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070322      H ighest Rank:
Length of Service : Y ea rs M on ths 24 D a ys
Education Level:        AFQT: 33
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle GWOTSM NDSM CAR SSDR GWOTEM NUC PUC CoC(2)

Periods of UA / CONF :

NJP: 2

- NFIR:  Counseling dated 20040302 and NJP dated 20040510 indicate previous NJP for violation of Article 111. Specifics NFIR

- 20040510 :      Article 86, (Absence without leave, UA from restriction check-in on 20040430)
         Awarded: RIR FOP RESTR EPD Susp ended:

SCM:

SPCM:

- 20060330 :       Art icle , (Wrongful use of controlled substance, 3 specifications )
         Specification 1: Wrongful use of cocaine between 20051119 - 20051129
         Specification 2: Wrongful use of cocaine between 20051224 - 20060104
         Specification 3: Wrongful use of cocaine between 20060211 - 20060221
          Sentence : 90 days (20060330 - 20060611, 72 days )

CC:

Retention Warning Counseling : 1

- 20040302 :       For suspension and revocation of base and State of North Carolina driving privileges from 20040229 - 20050229



Administrative Corrections to the Applicant’s DD 214

The NDRB did note an administrative error on the original DD Form 214:

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “ CO M BAT ACTION RIBBON, NATIONAL DEFENSE SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON, GLOBAL WAR ON TERRORISM SERVICE MEDAL, GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL, NAVY MERITORIOUS UNIT COMMENDATION, PRESIDENTIAL UNIT COMMENDATION, CERTIFICATE OF COMMENDATION (INDIVIDUAL AWARD ) , CERTIFICATE OF COMMENDATION (UNIT AWARD), RIFLE MARKSMANSHIP BADGE ”
        
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 .

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 desires to become eligible for VA benefits.
2.       The Applicant seeks recoupment of allowances and benefits.
3 . The Applicant believes his Bad Conduct Discharge was not supposed to be executed and was assigned in error.
4.       The Applicant contends clemency is warranted, because he completed two combat tours and six months at sea and now suffers from Post-Traumatic Stress Disorder (PTSD) .
Decision

Date : 2011 0908             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 governmental 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 record of service included 6105 counseling warning, for o f the Uniform Code of Military Justice (UCMJ): Article ( , ) and Article ( , ) , a nd for of the UCMJ: Article ( , : cocaine ). The Applicant a pre-service drug waiver . Record of the Applicant’s acknowledgment of complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs was not found in the record. Based on the Applicant ’s conviction at special court-martial, and following confinement and appellant review, he was separated with a Bad Conduct Discharge .

: (Nondecisional) The Applicant desires to become eligible for VA 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.

: (Nondecisional) The Applicant seeks recoupment of allowances and benefits. The NDRB has no authority to take action on the Applicant’s request . The NDRB is only authorized to review the propriety and equity of a discharge. T he Applicant may petition the Board for Correction of Naval Records, 2 Navy Annex, Washington, DC 20370-5100 for further review.
: (Decisional) ( ) . The Applicant believes his Bad Conduct Discharge was not supposed to be executed and was issued in error . He refers to the phrase in the action of the C onvening A uthority, “ The sentence is a pproved and, except for the B ad C onduct D ischarge , will be executed. ” The Applicant misunderstood the meaning of this sentence . After the court-martial, t he C onvening A uthority approv ed the sentence and order ed it executed , except for the Bad Conduct Discharge, which cannot be approved and executed until further and final review by the Navy-Marine Corps Court of Criminal Appeals in Washington, DC. On 28 December 2006, the appeals court affirmed the findings and sentence from the Special Court-Martial and ordered the Bad Conduct Discharge to be executed via supplemental order 07-0168. The NDRB found there was clearly no error in the Applicant’s court-martial proceedings or in the assignment of a B ad C onduct D ischarge characterization of service. The NDRB determined clemency is not warranted.


: (Decisional) ( ) . The Applicant contends clemency is warranted, because he completed two com bat tours and six months at sea and now suffers from PTSD. The record shows the Applicant was diagnosed and treated for PTSD and Bi-polar while in service. The NDRB was unable to obtain the Applicant’s medical records and had no acce ss to psychiatric evaluations for detailed analysis. The Applicant provided no documentation to further support PTSD as a mitigating factor in his misconduct. While the Applicant was clearly diagnosed with PTSD, the record revealed no evidence to indicate the Applicant’s PTSD was of such severity that he was unable to abide by USMC rules and regulations. The NDRB presumes regularity in the conduct of governmental affairs and presumes relevant and material facts stated in a court-martial to be established facts . Due to the lack of clear, documentary evidence, clemency is not warranted for this issue. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, and d ischarge p rocess, 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 Disabled 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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