Upgrade.Vet

USMC | DRB | 2010_Marine | MD1001779

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

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20100707

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)       20011017 - 20011202     Active:

Period of Service Under Review:
Date of Current Enlistment: 20011203     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20050428      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 26 D a y ( s )
Education Level:        AFQT: 31
MOS: 3533
Proficiency/Conduct M arks (# of occasions): /          Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA :

NJP:

- 20021203 :       Article ( Wrongful use, possession, etc of a controlled substance - amphetamines 1463 ng/ml and methamphetamine 3061 ng/ml)
         Awarded : Susp ended:

SCM: NFIR

SPCM:

- 20040121 :       Art icle ( Wrongful use, possession, etc of a controlled substance - methamphetamine), 4 specifications
         Article 121 ( Larceny - Theft of property of a value of less than $500.00)
         Article 92 (Failure to obey a lawful order)
         Sentence : FOR 6 MONTHS (2003102 9 -20040120, 84 days p re-trial and 20040121-20040325, 65 days p ost -t rial )

CC:

Retention Warning Counseling :

- 20021122 :       For diagnosis of a personality disorder, specifically Axis I: adjustment disorder with depression/drug abuse. Axis II: Borderline personality disorder without antisocial personality disorder. Axis III: Problems with occupation.

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.       Nondecisional issues: The Applicant seeks an upgrade in the characterization of his service at discharge in order to facilitate reenlistment and eligibility for Department of Veterans Affairs (VA) benefits.

2.       Decisional issues: The Applicant did not identify any specific issues related to the equity of his discharge ; however, by submission of his DD Form 293, he has requested consideration for clemency as it relates to his Bad Conduct Discharge.

Decision

Date: 20 1 1 1020          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 as stated in a court-martial are presumed, by the NDRB, to be established facts. As such, 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 enlistment record reflects his entry into military service with wa i ver to enlistment and induction standards for his acknowledged pre-service drug use (marijuana). As a function of the enlistment and drug waiver process, the Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs - witnessed, in writing - on 16 October 2001. The Applicant’s period of service under review reflects one 6105 retention-counseling warning throughout his enlistment and one non-judicial punishment for violation of the Uniform Code of Military Justice (UCMJ), Article 112(a) ( Wrongful use, possession, etc of a controlled substance – methamphetamine , 3061 ng/ml) . Based on this violation, processing for separation was mandatory by service policy. The service re cord does not reflect w hether the Applicant was processed and retained, or if the command failed to process the Applicant. However, the Applicant was retained and deployed in support of Operation IRAQI FREEDOM (OIF I) in January 2003. Approximately 6 months later, the Applicant failed a command urinalysis test for methamphetamine in his urine.

The Applicant’s service record reflects a punitive conviction and punishment as adjudged by a S pecial C ourt -M artial on 21 January 200 4 . The Applicant was subject to trial for violation of the UCMJ as follows: Article 112 (a) (Wrongful use, possession, etc of a controlled substance - methamphetamines, 4 specifications (Aug thru Oct 2003)) , Article 121 (Larceny ) , and Article 92 (Failure to obey order or regulation). A qualified legal defense counsel represented the Applicant throughout the trial. The Applicant submitted a pre-trial agreement in which he agreed to plead guilty before a judge alone to the charges and specifications as specified above if the remaining charges were withdrawn and all confinement in excess of 180 days was suspended in return for his submitting a request for appellate leave. Given the facts of the case, the trial judge awarded the Applicant a Bad Conduct Discharge and confinement for 6 months . The case was submitted for review , without assignment of error, to the U.S. Navy–Marine Corps Court of Criminal Appeals; it was reviewed and the findings were affirmed. Subsequently, the Navy Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed. The Applicant’s final discharge was e ffected on 28 April 2005 .

The Applicant seeks an upgrade to facilitate access to VA b enefits (health and education) and reenlistment in the Armed Forces . There is no requirement, or law, that grants re-characterization solely on the issue of obtaining veterans health and educational benefits. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment o pportunities. In respect to a Bad Conduct Discharge, regulations limit the NDRB’s review solely to a determination of clemency in consideration of the equity of the discharge. As such, this issue does not serve to provide a foundation upon wh ich the NDRB can grant relief.

Decisional Issue: (Clemency/Equity) RELIEF NOT WARRANTED. 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. The Applicant’s service record documents a period of service of approximately 2 years and 2 months , in which time he was subject to one NJP for illegal use of drugs and one trial by Special Court - Martial for continued use of illegal drug s . The Applicant’s documented misconduct during his enlistment includes a total of five s pecifications of wrongful use of methamphetamines , one specification of larceny , and one specification of failing to obey orders or regulations. Given the Applicant ’ s continued disregard for service policy ( after having been r etained in service following a confirmed use of illegal drugs ) , coupled with the detrimental effect to the good order and discipline of the service, the Command referred the charges to trial by Special Court - Martial. The stated misconduct resulted in the awarding of a punitive Bad Conduct Discharge , confinement for six months, and an automatic reduction in grade to E-1 (Private).

Clemency is an act of leniency that reduces the severity of the punishment imposed. Despite a servicemember’s prior record of service, certain serious offenses warrant separation from the service in order to maintain good order and discipline. Given his previous NJP and retention following a confirmed use of illegal drugs, the Applicant was fully aware of the wrongfulness of his conduct and that the command must hold him accountable in order to assure the integrity and discipline of the service. Repetitive use of illegal drugs is not minor misconduct and warrants punitive disciplinary action, especially for those who have already been given an opportunity for retention. The NDRB found that the evidence of record, along with the Applicant’s statement, did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded. 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 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

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USMC | DRB | 2010_Marine | MD1001779

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