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USMC | DRB | 2010_Marine | MD1001942
Original file (MD1001942.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20100728
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)       19900601 - 19900717     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19900718     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19970826      H ighest Rank:
Length of Service : Y ea rs M on th 09 D a ys
Education Level: 12      AFQT: 32
MOS: 2512/2513
Proficiency/Conduct M arks (# of occasions): 4.1 ( 18 ) / 4.0 ( 18 )          Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle MM NDSM SSDR MM COC LOA

Periods of UA / CONF :

NJP: 2

- 19920416 :      Article 134 (Orally communicated indecent language to a female Marine)
         Awarded: RIR , FOP , RESTR , EPD Suspended:

- 19940110 :      Article 111 (Drunken or reckless operation of a vehicle, 19931212)
         Awarded: FOP , RESTR /EPD ( 14 days ) Susp ended: FOP , RESTR ( 7 days )

SCM: NONE        CC:

SPCM: 1

- 19950712 :       Art icle 112a (Wrongful use , possession, etc of a controlled substance - marijuana)       
         Sentence : BCD, RIR

Retention Warning Counseling : 1

- 19950830 :       For loss of driving privileges aboard any military installation for twelve months

Administrative Corrections to the Applicant’s DD 214

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

          “BAD CONDUCT DISCHARGE”
 “COURT-MARTIAL ”

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 P1900.16E), effective 18 August 1995 until 31 August 2001.

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

 Decisional Issue: The Applicant seeks clemency in the form of an upgrade in the characterization of his service at discharge to General (Under Honorable Conditions) contending that it has been 15 years , and he believes he has overcome his minor misconduct as evidenced by his post-service efforts i n the church and local community .

Decision

 Date: 20 1 1 11 09           Location: Washington D.C .        R epresentation : none

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, 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 recognized 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 par ticular case merited clemency.

The Applicant’s service record indicates he entered military service at age 2 4 on a 4-year enlistment contract under a communications option, ultimately receiving training as a field radio operator specialist with the Marine Corps. The Applicant extended his enlistment contract for eight months in order to have sufficient obligated service time to submit a request for reenlistment. The Applicant’s enlistment record further reflects his entry into military service with a waiver to enlistment and induction standards for pre-service drug use (marijuana) ; he a cknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 30 May 1990 as a function of his waiver for enlistment. The highest rank achieved by the Applicant during his enlistment tenure was E-3/Lance Corporal.

The Applicant’s record of service included one 6105 retention- counseling warning and two nonjudicial punishments (NJPs) for violations o f the Uniform Code of Military Justice (UCMJ): Article 111 (Drunken or reckless operation of a vehicle ) and Article 134 (Orally communicated indecent language to a female Marine) . Moreover, the Applicant’s record of service documents a punitive S pecial C ourt -M artial for violation of Article 112(a) of the UCMJ: W rongful use , possession, etc of a controlled substance - marijuana . A qualified legal defense counsel represented the Applicant throughout the trial by Special Court-Martial process. Given the facts of the case, the trial judge awarded the Applicant a Bad Conduct Discharge and a reduction in grade to E-1 . The case was submitted for review with two assignments of error to the U.S. Navy–Marine Corps Court of Criminal Appeals; it was reviewed and the findings of the court were affirmed on 30 April 1997 . The Applicant appealed the decision to the United States Court of Appeals for the Armed Forces wherein the Applicant ’ s petition for review was denied. Subsequently, the Navy Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed on 26 August 1997. On 26 August 1997 , the Applicant’s discharge was effected.
Besides his DD Form 293, the Applicant provided numerous character references and current employment for consideration by the NDRB in support of his request.

Board Issue (Clemency/Equity) - PARTIAL RELIEF WARRANTED. The Applicant seeks clemency in the form of an upgrade in the characterization of his service at discharge to General (Under Honorable Conditions) contending that it has been 15 years , and he believes he has overcome his minor misconduct as evidenced by his post-service efforts in the church and local community. The NDRB conducted a thorough review of the Applicant’s discharge under the pertinent sta n dards of equity to determine if any factors in this particular case merited clemency. The Applicant was referred to trial by S pecial Court-Martial for a single use of marijuana while in service . The Applicant pled not guilty and was subsequently tried before a jury of members. The jury found the Applicant guilty of the offense as charged and awarded him the Bad Conduct Discharge and reduction to Private/E-1. The NDRB reviewed all of the available records, supporting documents, facts, elements of discharge,

and circumstances unique to this case. Given the unique circumstances of the case, coupled with the nature of the misconduct and the Applicant ’ s post service conduct , the NDRB determined that the punishment was not equitable nor consistent with the characterization of discharge given others in similar circumstances. As such, the NDRB determined that some form of relief was warranted.

The Applicant seeks a change in the characterization of his service at discharge to a General (Under Honorable Conditions) discharge. A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. However, a n Under Other Than Honorable Conditions discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service. A fter reviewing the Applicant’s issue, the supporting documentation, and the evidence of record contained in the record of trial, the NDRB determined that some form of clemency was warranted . As such , the NDRB determined that the Applicant’s misconduct of record was conduct involving one or more acts or omission s that did constitute a significant departure from the conduct expected of members of the Naval Service. As such, by a vote of 5-0, the NDRB determined that the characterization of service shall change to Under Other Than Honorable Conditions . Partial relief granted. Full relief to General (Under Honorable Conditions) was not granted because of the seriousness of the misconduct .

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, the record of trial by Special Court-Martial, and the discharge process, the NDRB found that some form of clemency was warranted. Therefore, the awarded characterization of service shall UNDER OTHER THAN HONORABLE CONDITIONS, but 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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