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USMC | DRB | 2010_Marine | MD1001959

Original file (MD1001959.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20100803

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)       19901009 - 19901126     Active:

Period of Service Under Review:
Date of Current Enlistment: 19901127     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19960130      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 4 D a y ( s )
Education Level:        AFQT: 38
MOS: 2531
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle LoA (5) JMUC

Periods of UA :

NJP:
- 19921014 :       Article (Wrongful use of a controlled substance, THC/Methamphetamine)
         Awarded : Susp ended:

- 19941107 :       Article (Wrongful use of a controlled substance, Methamphetamine)
         Awarded : Susp ended:

SCM:     CC:      Retention Warning Counseling :

SPCM:
- 19950222 :       Art icle (Wrongful use of a controlled substance, Methamphetamine)
         Sentence : ( 19950207 - 19950221, 16 days pre-trial confinement) (19950222 - 19950301 7 days)

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “ RIFLE SHARPSHOOTER BADGE, PISTOL EXPERT BADGE, NATIONAL DEFENSE SERVICE MEDAL, LETTER OF APPRECIATION (5), SEA SERVICE DEPLOYMENT RIBBON, JOINT MERITORIOUS UNIT COMMENDATION, ARMED FORCES EXPEDITIONARY MEDAL ”
         “ MARCORSEPMAN 1105 ”
         “ 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 I ssues: The Applicant contends that clemency is warranted regarding his discharge characterization of service; he was young and immature and had completed his original obligation honorably and was serving on an extension when h e got in trouble.

Decision

Date: 20 1 1 117 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, 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 3 on a 4 -year enlistment contract under a communications option , ultimately receiving training a s a field radio operator specialist with the Marine Corps . The Applicant’s enlistment record reflects his entry into military service with out a waiver for any pre-service drug use . The highest rank achieved by the Applicant during his enlistment was E- 3 / Lance Corporal . The Applicant’ s record of service contained t w o non-judicial punishments for violation s of the Uniform Code of Military Justice (UCMJ) : Article 112(a) ( W rongful use, possession, etc of a controlled substance - marijuana and methamphetamines) . Moreover, the Applicant’s service record reflects a punitive conviction and punishment as adjudged by a S pecial C ourt -M artial on 22 February 1995 . The Applicant was subject to trial by S pecial C ourt -M artial for violation of two specifications of Article 112 (a) (methamphetamines). A qualified legal defense counsel represented the Applicant throughout the trial by Special Court-Martial. Given the facts of the case, the trial judge awarded the Applicant a Bad Conduct Discharge, reduction in grade to E-1, and confinement for a period of 3 0 days with credit for 16 days of pretrial confinement . The case was submitted for review without assignments of error to the U.S. Navy–Marine Corps Court of Criminal Appeals; it was reviewed and the findings were affirmed on 06 December 1995 . Subsequently, the Navy Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed on 2 7 January 199 6 . On 30 January 2006, t he Applicant’s discharge was effected .

Decisional Issue (Clemency/Equity) - CLEMENCY NOT WARRANTED. The Applicant contends that clemency is warranted regarding his discharge characterization of service in that he was young and immature and that he had completed his original obligation honorably and was serving on an extension when he got in trouble. 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 4 years and 9 month prior to being referred to trial by S pecial C ourt -M artial. During this period of service, he was subject to two n onjudicial p unishments for violation s of Article 112 ( a) as confirmed by Naval drug lab testing of his urine sample. The Applicant ’ s conduct demonstrated a pattern of misconduct related to d rug usage. The Applicant enlisted in January of 1990; in October 1992, he was found guilty of violating A rticle 112(a) of the UCMJ. Violation of Article 112 (a) required mandatory processing for separation by service policy; the record does not reflect that the Applicant was ever p rocessed for separation. Two years later (Nov 94), the Applicant again received nonjudicial punishment for violation o f Article 112 (a); again, the service record does not document any administrative processing for separation as was required by service policy for any confirmed use of illegal drug s . Given two opportunities to correct his deficiencies and complete his enlistment, the Applicant again was determined to have wrongfully used a controlled substance – methamphetamines. Given the continued violations of the UCMJ, the command referred the charge for adjudication at a trial by S pecial C ourt -M artial. While awaiting his trial, the Applicant again tested positive for drugs. Th is new charge was appended to the specifications and charges already pending trial.

The NDRB recognizes that many of our service members are young at the time they enlist for service, however, most manage to serve their enlistment s honorably. While some members may be less mature than others, the NDRB does not view a member’s youth or immaturity to be a mitigating factor or a sufficient reason to discount misconduct, especially repetitive misconduct. 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. Given the multiple opportunities the A pplicant had to correct his deficiencies, 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 is not warranted. 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 NDRB determined that Therefore, the awarded characterization of service shall BAD CONDUCT DISCHARGE and the narrative reason for separation shall remain . As 15 years time since discharge has elapsed, the Applicant must now address all correspondence regarding his service to the Board for Correction of Naval Records.

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 | MD1001959

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