Upgrade.Vet

USMC | DRB | 2010_Marine | MD1001368

Original file (MD1001368.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20100427

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)       19981028 - 1999030 7     Active:

Period of Service Under Review:
Date of Current Enlistment: 1999030 8     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20020627      H ighest Rank:
Length of Service : Y ea rs M on ths 18 D a ys
Education Level:        AFQT: 85
MOS: 65 1 1
Proficiency/Conduct M arks (# of occasions): /          Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Period of UA: NONE
Periods of CONFINEMENT: 20010111 to 20010228 (48 Days)

NJP: NONE         SCM: NONE                  CC:      Retention Warning Counseling : NFIR

SPCM:

- 20010111 :       Art icle (Wrongful use , possession, etc of controlled substance s ) , 4 specifications [as amended with additional charges to the original referral of charges]
Specificatio n 1: Wrongful use of M arijuana (a schedule I controlled substance) on diverse occasions between March and June 2000 [Plead Guilty / Finding : Guilty]
Specification 2: Wrongful use of P silocybin ( mushrooms ) (a schedule I controlled substance) between March and June 2000 [Plead Guilty / Finding : Guilty]
Specification 3: Wrongful use of Lysergic Acid Diethylamide (LSD) (a schedule I controlled substance) on or about 03 December 1999 [Plead Not Guilty / Charge W ithdrawn]
Specification 4: Wrongful use of cocaine (a schedule II controlled substance ) on or about August 2000 [Plead Guilty / Finding: Guilty]
         Sentence : Bad Conduct Discharge, , Awarded c onfinement for 9 0 days in Miramar Brig

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 503, Equity .

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

Applicant’s Issues

Decisional issues – The Applicant’s request for a discharge review indicated an attached sheet of issues ; however, no issues related to the equity of the Bad Conduct Discharge pursuant to trial by Special Court - Martial were appended to the application .

Decision

Date: 20 1 1 08 04 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 indicates he entered military service at age 18 on a 4-year enlistment contract under an Aviation Support Specialty enlistment guarantee. The Applicant’s enlistment record reflects his entry into military service with pre-service waiver for illegal drug use (marijuana) and dependants (married). The Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 28 October 1998. T he Applicant’s service record contains a punitive punishment as adjudged by a trial by S pecial C ourt -M artial dated 11 January 2001 . The Applicant was subject to Special Court - Martial for alleged violation s of Article 112(a) ( Wrongful use, possession, etc of controlled substances, 4 specifications ); a qualified legal defense counsel represented him during his trial by Special Court-Martial. In accordance with a signed pre-trial agreement, the Applicant agreed to request trial by military judge alone and further elected to plead guilty to th ree of the four specifications of violation of Article 112(a). Given the facts of the case, the trial judge awarded the Applicant a Bad Conduct Discharge, order that he be confined for a period of 90 days, ordered a forfeiture of pay, and reduced the Applicant in rank to Private /E-1 . The case was submitted for review without an assignment of error to the U.S. Navy–Marine Corps Court of Criminal Appeals; it was reviewed and the findings were affirmed on 04 January 2002 . Subsequently, the Navy Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed .

NDRB Review : (Clemency/Equity) - RELIEF NOT WARRANTED. The Applicant contends that he warrants clemency regarding the characterization of his service at discharge by submission of his request for review; however, the Applicant did not identify any specific issues of inequity for the NDRB’s consideration , though his application indicated an attached list of issues . After attempts to contact the Applicant failed, the NDRB conducted a thorough review of the Applicant’s discharge under the pertinent standard of equity to determine if any factors in this particular case merited clemency. The NDRB determined that the Applicant’s youth or immaturity was not a mitigating factor in this case. Moreover, the NDRB found 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. Given the illegal use of multiple controlled substances in violation of Federal and State laws , Department of Defense Regulations, M arine Corps Policy , and service ethos, coupled with the repetitive and deliberate nature of the misconduct, the NDRB agreed unanimously that the punishment, as awarded, was equitable and that relief in the form of clemency was not warranted. Accordingly, r elief is denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and the discharge process, the NDRB determined that Therefore, the awarded characterization of service shall BAD CONDUCT DISCHARGE 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

Similar Decisions

USMC | DRB | 2011_Marine | MD1100546

Original file (MD1100546.rtf) Auto-classification: Denied

Types of Documents Submitted/reviewedRelated 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: Other Documentation: Additional Statements:From Applicant: From/To Representation:From/ToCongress member: Pertinent Regulation/Law A. Paragraph 1105, DISCHARGE...
USMC | DRB | 2015_Marine | MD1500095

Original file (MD1500095.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. 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 remain BAD CONDUCT DISCHARGE and the narrative reason for separation shall remain COURT-MARTIAL. ” Additional Reviews : After a document review has been...
USMC | DRB | 2010_Marine | MD1001933

Original file (MD1001933.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. Decisional Issue: (Clemency/Equity) CLEMENCY NOT WARRANTED. ” 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.
USMC | DRB | 2011_Marine | MD1100322

Original file (MD1100322.rtf) Auto-classification: Denied

Types of Documents Submitted/reviewedRelated 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: Other Documentation: Additional Statements:From Applicant: From/To Representation:From/ToCongress member: Pertinent Regulation/Law A.Paragraph 1105, DISCHARGE...
USMC | DRB | 2010_Marine | MD1001779

Original file (MD1001779.rtf) Auto-classification: Denied

The NDRB conducted a thorough review of the Applicant’s discharge under the pertinent standards of equity to determine if any factors in this particular case merited clemency. Accordingly, relief is denied Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, the verbatim transcript record of trial by Special Court-Martial, and the discharge process, the NDRB determined that Therefore, the awarded characterization of...
USMC | DRB | 2014_Marine | MD1400977

Original file (MD1400977.rtf) Auto-classification: Denied

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. ” Additional Reviews : After a document review has been...
USMC | DRB | 2012_Marine | MD1201778

Original file (MD1201778.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. 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...
USMC | DRB | 2010_Marine | MD1000418

Original file (MD1000418.rtf) Auto-classification: Denied

As regulations limit the NDRB’s review solely to a determination of clemency under the pertinent standards of equity, this issue does not serve to provide a foundation upon which the Board can grant relief. Relief denied Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, the verbatim transcript record of trial by Special Court-Martial, and the discharge process, the Board found that Therefore, the awarded...
USMC | DRB | 2010_Marine | MD1001818

Original file (MD1001818.rtf) Auto-classification: Denied

Applicant’s Request:Characterization change to: Narrative Reason change to: Summary of ServicePrior Service: Inactive:USMCR (DEP)19991028 - 20000820Active: Period of Service Under Review: Date of Current Enlistment: 20000821Age at Enlistment: Period of Enlistment: Years MonthsDate of Discharge:20061205Highest Rank:Length of Service: Years Month03 DaysEducation Level: AFQT:45MOS: 6153Proficiency/Conduct Marks (# of occasions):(6)/(6)Fitness Reports: Awards and Decorations (per DD 214):Rifle...
USMC | DRB | 2010_Marine | MD1002209

Original file (MD1002209.rtf) Auto-classification: Denied

Types of Documents Submitted/reviewedRelated 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: Other Documentation: Additional Statements:From Applicant: From/To Representation:From/ToCongress member: Pertinent Regulation/Law A. Paragraph 1105, DISCHARGE...

Search Decisions

Decision Text

USMC | DRB | 2010_Marine | MD1001368

Similar Decisions