Upgrade.Vet

USMC | DRB | 2010_Marine | MD1002097

Original file (MD1002097.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20100824

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)       19990619 - 19990627     Active:

Period of Service Under Review:
Date of Current Enlistment: 19990628     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20011105      H ighest Rank:
Length of Service : Y ea rs M on ths 09 D a ys
Education Level:        AFQT: 46
MOS: 2512
Proficiency/Conduct M arks (# of occasions): ( 3 ) / 2.1 ( 3 )       Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle SS

Period of UA : 2000011 8 - 20000409 ( 86 days )

Period of Confinement: 20000413 - 20000517 ( p re-trial , 35 days); 2000518 - 2000524 (7 days)

NJP: NONE        S CM: NONE        CC: NONE

SPCM: 1
- 20000518 :       Article 86 (Absent without leave - absented himself from his unit, without authority, on 18 Jan 2000 and did remain so absent until apprehended by civilian law enforcement authorities on 09 Apr 2000)
         Art icle 112a (Wrongful use , possession, etc of controlled substance - marijuana)
         Sentence : RIR BCD CONF 60 days (20000413 - 20000524, 42 days)

Retention Warning Counseling : 1
         - 19991026 :       For refusal to train and comply with Marine Corps standards

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 :

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

Applicant’s Issues

Nondecisional Issues: The Applicant seeks clemency in the form of an upgrade in the characterization of his service at discharge in order to facilitate employment opportunities or reenlistment in the armed forces.

Decisional Issues : The Applicant contends that his discharge characterization of service was inequitable and seeks clemency in consideration of his youth and immaturity , which led to poor decision making at the time of his discharge.

Decision

Date: 20 1 1 1208 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 particular case merited clemency.

The Applicant’s service record indicates he entered military service at age 17 (with parental consent) on a 4-year enlistment contract under a communications option, ultimately receiving training as a field wireman specialist. The Applicant’s enlistment record further reflects his entry into military service with out waiver s to enlistment and induction standards . The Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs - in writing - on 18 June 1999 . The highest rank achieved by the Applicant during his enlistment tenure was E- 2 / Private First Class . The Applicant’s record of service included one 6105 retention-counseling warning and a punitive S pecial C ourt -M artial for violation s of the U niform Code of Military Justice (U CMJ ) : Article 86 (Absence without leave - 86 days) and Article 112(a) ( 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 , confinement for 60 days, and a reduction in pay grade to E-1. The case was submitted for review with out any assignment 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 27 July 2001 . Subsequently, the Navy Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed on 05 November 2001 . On 15 November 2001, the Applicant’s discharge was effected.

Nondecisional Issues - The Applicant seeks clemency in the form of an upgrade in the characterization of his service at discharge in order to facilitate employment opportunities or reenlistment in the armed forces. There is no requirement, or law, that grants re-characterization solely on the issue of facilitating reenlistment in the armed services; t he NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the armed forces, and is not authorized to change a reentry code . Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities or employment opportunities. Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a 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 Applicant contend s that his discharge characterization of service was inequitable and seeks clemency in consideration of his youth and immaturity, which led to poor decision making at the time of his discharge. The Applicant’s service record documents a period of service of approximately 11 months prior to being referred to trial by S pecial C ourt -M artial and discharged . The Applicant was referred to trial f or a single use of marijuana while in service and for 86 days of unauthorized absence, terminated by civilian law enforcement apprehension . Despite a service member’s prior record of service, certain serious offenses, though isolated, warrant separation from the Naval Service in order to maintain good order and discipline. Violation of Article 86 ( in excess of 30 days) and

Article 112(a) are such offense s. Moreover, violation of A rticle 112(a) requires mandatory processing for administrative separation, regardless of grade, combat experience, or time in service. This action usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge with the possibility of confinement, if adjudicated and awar ded as part of a sentence by a S pecial or G eneral C ourt- M artial. Due to the charges as specified , and the requirement to maintain good order and discipline, the command opted to pursue punitive discharge action. The m ilitary j udge f ound the Applicant guilty of the two charges as specified above and adjudged the Applicant a Bad Conduct Discharge , reduction in rank, and 60 days confinement .

The Applicant contends that his youth and immaturity was the underlying cause of his misconduct. The NDRB recognizes that many of our service members are young at the time they enlist for service , but most still manage to serve honorably. While it is understand that some members may be less mature than others , the NDRB does not view a member’s claim of immaturity to be a mitigating factor or a sufficient reason for misconduct. Characterization of service at discharge is recognition of the quality of a Marine ’s performance and conduct . 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. After reviewing the Applicant’s issue, the supporting documentation, and the evidence of record contained in the record of trial, the NDRB discerned no inequity in the discharge action or the characterization of service and determined that clemency is not warranted. As such, by a vote of 5-0, the NDRB determined that the characterization of service shall remain Bad Conduct Discharge . No relief granted.

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 clemency is 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 discharge. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews and Post-Service Conduct .

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 .

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 | MD1002097

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