Upgrade.Vet

USMC | DRB | 2010_Marine | MD1002022

Original file (MD1002022.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20100813

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:         NONE              Active: NONE

Period of Service Under Review:

Date of Current Enlistment: 19970325     Age at Enlistment:
Period of E nlistment : Years with a 16 Month extension to obligated service
Date of Discharge: 20041115      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 21 D a y ( s )
Education Level:        AFQT: 52
MOS: 3043/ 4341
Proficiency/Conduct M arks (# of occasions): /          Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA : 20010502
Periods of Confinement: 20020205 - 20020325 (52 Days)

NJP:

SCM:

SPCM:

- 20020205 :       Art icle (UA, 2 specifications )
         Specification 1: Unauthorized absence until 1130, 20010502
         Specification 2: Failure to go to appointed place of duty on 20010626
         Art icle (Disrespectful in language toward GySgt)
         Art icle (Violate a lawful general order by wrongfully using Bank of America Government Travel Card for unofficial expenses)
         Article 112 (Drunk on duty on 20010502)
         Art icle ( W rongful use, possession, etc of a controlled substance , 2 specifications )
         Specification 1: Wrongfully use cocaine 20000705
         Specification 2: Wrongfully use cocaine 20010829
         Article 134 ( Indebtedness to the Bank of America in the sum of $2 , 631.70)
         Sentence : , 60 DAYS (20020205-20020325, 52 DAYS) ,

C ivilian Arrest : DUI, Fall 2001

Retention Warning Counseling :

Administrative Corrections to the Applicant’s DD 214

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

         “ BAD CONDUCT DISCHARGE ”

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. Nondecisional issues: The Applicant seeks an upgrade in the characterization of h er service at discharge in order to facilitate access to the Department of Veterans Affairs (VA) medical benefits.

2. Decisional issues: The Applicant seeks clemency in the form of an upgrade in h er discharge characterization to Honorable, contending that her mental health conditions and related personal problems were mitigating factors to the misconduct of record.

Decision

Date: 20 1 1 1117 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 service record documents entry into m ilitary service at age 29. She enlisted on a 4 -year enlistment contract as a supply administrator and then extended her service contract while in service by 16 months in order to retrain as a combat correspondent. The Applicant’s enlistment record reflects h er entry into military service with wavier to enlistment and induction standards due to adjudicated law violations of serious offenses, a waiver for exceeding enlistment age, and for pre-service illegal drug usage (marijuana) . The highest rank achieved by the Applicant during h er enlistment was E- 4 / Corporal .

The Applicant’s period of service under review documents no retention-counseling warning s or nonjudicial punishments for any violations of the UCMJ. However, the Applicant’s service record does reflect a punitive conviction with punishment as adjudged by a S pecial C ourt - M artial on 05 February 2002 . The Applicant was subject to trial by S pecial C ourt -M artial for violation of the UCMJ as follows: Article 86 ( Absent without leave , 2 specifications ) , Article 91 (Insubordinate conduct to a staff noncommissioned officer) , Article 92 (Failure to obey orders or regulations) , Article 112 (Drunk on duty) , Article 112(a) (Wrongful use, possession, etc of a controlled substance (cocaine) , 2 specifications) , and Article 134 (Dishonorably failing to pay just debt). A qualified legal defense counsel represented the Applicant throughout h er trial by Special Court-Martial. Given the facts of the case and the Applicant’s testimony of record , the military judge awarded the Applicant a Bad Conduct Discharge, a reduction in grade to E-1, and confinement for a period of 60 days . The case was submitted for review with out assignment of error to the U.S. Navy–Marine Corps Court of Criminal Appeals; it was reviewed , amended, and the findings were affirmed on 22 July 2004 . Subsequently, the Navy and Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed on 19 October 2004 . The Applicant’s final discharge was effected on 15 November 2004 .

Nondecisional issue - The Applicant seeks clemency in the form of an upgrade in the characterization of h er service at discharge from Bad Conduct to Honorable in order to facilitate access to VA m edical b enefits . There is no requirement, or law, that grants re-characterization solely on the issue of obtaining veterans health or educational benefits. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities. As such, this issue does not serve to provide a foundation upon wh ich the NDRB can grant relief.

Decisional Issue s : (Clemency/Equity) - CLEMENCY NOT WARRANTED. The Applicant seeks clemency in the form of an upgrade in h er discharge characterization to Honorable, contending that her mental health conditions and related personal problems were mitigating factors to the misconduct of record. 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 documented misconduct includes a n extensive and continuing pattern of misconduct related to unauthorized absences , disrespect, alcohol abuse, drug abuse, and misuse of government travel card by larceny failure to pay just debt. Due to the Applicant ’ s refusal to conform to the expected conduct of a United States Marine noncommissioned officer and the detrimental effect to the good order and discipline of the command, the Commanding Officer referred the violations of the UCMJ to trial by Special Court - Martial .

The Applicant contends h er disciplinary problems were the result of stress caused by her mother’s diagnosis of cancer and limited prognosis. The Applicant contends the characterization of h er discharge should be upgraded , because s he suffered many setbacks due to this personal problem and her own diagnosis of major depressive disorder ( later amended to bi-polar disorder after further long-term evaluation ) . The NDRB recognizes that serving in the military is challenging. Most service members, however, serve honorably and therefore earn their H onorable discharges. In fairness to those service members, commanders and separation authorities are tasked to ensure that undeserving Marines and Sailors receive no higher characterization than is due. The evidence in the record i ndicate s that the Applicant was treated and seen by medical and mental health professionals but not until after her misconduct and excessive alcohol abuse became a problem. The record indicates multiple illegal drug use instances (cocaine), prosecuted and not prosecuted, along with a civilian arrest for driving under the influence of alcohol, all coupled with conduct unbecoming of a Marine with regards to disobedience, disrespect, and improper use of government travel card for personal expenses. Given the facts of the case and the timeline of events, to include the misconduct not prosecuted in the preceding years ( d rug use cocaine/DUI/UA), t he NDRB determined the Applicant’s record of service did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded nor did it warrant retention . Given 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 record of trial by Special Court-Martial, and the discharge process, the NDRB determined that clemency was not warranted. 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 the 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 | MD1002022

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