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USMC | DRB | 2010_Marine | MD1002313
Original file (MD1002313.rtf) Auto-classification: Denied
ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20100922
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)       20060725 - 20060820     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20060821     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080826      H ighest Rank:
Length of Service : Y ea rs M on ths 06 D a ys
Education Level:        AFQT: 70
MOS: 0300
Proficiency/Conduct M arks (# of occasions): 3.6 / 2.3    Fitness R eports:
Awards and Decorations ( per DD 214):      Rifle SS GWOTSM NDSM

Periods of U nauthorized A bsence/Confinement : 20070107 - 20070207 (UA - 32 days); 20070223 - 20070417 (pre-trial c onfinement - 54 days ) ; 20070424 - 20070512 ( UA - 16 days ) ; 20070519 - 20070807 (UA - 80 days, apprehended); 20070810 - 20071009 (pre-trial confinement - 61 days)

NJP: 1
- 20070209:      Article 86 (Absence without leave, 20070107 - 20070207, 32 days )
         Awarded: FOP , RESTR , EPD Suspended: NONE
- 20070419 :      Article 115 (Malingering, 2 specifications )
         Specification 1: Intentionally injure self by cutting wrist with a razor (20070212) to avoid duties
         Specification 2: Feigning a mental derangement (20070222) to avoid duties
         Awarded: FOP (2 months) , RESTR / EPD (45 days) Suspended: FOP (1 month) , RESTR/ EPD (25 days)

SPCM: 1
- 20080223 :       Art icle 86 (Absence without leave, 20070519 - 20070807, 80 days, terminated by apprehen sion )
         Article 112a (Wrongful use , possession, etc., of a controlled substance, 2 specifications )
         Specification 1: Wrongful use of a controlled substance ( methylenedioxymethamphetamine ( E cstasy) ) on or about 14 May 2007 ( 1161 ng/m l)
         Specification 2: Wrongful use of controlled substance ( marijuana ) , on or about 14 May 2007 ( 28 ng/m l)
         Sentence : BCD, CONF 90 days (20070810 - 20071009, 61 days)

SCM: NONE        CC: NFIR

Retention Warning Counseling : 3
- 20070209:      For unauthorized absence from 20070107 - 20070207, 32 days

- 20070419:      For intentionally injuring self by cutting wrist with a razor and feigning mental derangement to avoid duties

- U ndated :        For unauthorized absence from 20070519 - 20070807 and wrongful use of MDMA and marijuana

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 503, Equity .


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 reenlistment in the armed forces.

Decisional Issues: The Applicant seeks clemency in the form of an upgrade in the characterization of his service at discharge to at least General (Under Honorable Conditions), contending that he was young and immature at the time of enlistment and made a rash decision to join the Marine Corps. Additionally, the Applicant contends that recruiter misconduct regarding his pre-service drug use mitiga tes his misconduct in service.

Decision

 Date: 20 1 20103           Location: Washington D.C .         R epresentation : NONE

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall .

Discussion

 The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted. In reviewing those discharges, the NDRB presumes regularity in the conduct of Government al affairs unless there is substantial, credible evidence to rebut the presumption, to include evidence submitted by an 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 stated in a court-martial are presumed by the NDRB to be established facts. As such, the Applicant ’ s case was reviewed under the pertinent standard of equity to determine if any factors in this par ticular case merited clemency.

The Applicant’s service record documents that he entered the D elayed E ntry P rogram at age 17 (with parental consent). He entered active duty service at age 18 , on a f our -year enlistment contract , with a Marine Corps Infantry Training option guarantee . The Applicant’s enlistment record reflects his entry into the military service with a waiver to enlistment and induction standards for pre-service illegal drug use (marijuana) . As a function of his enlistment contract wa i ver requirement, the Applicant acknowledged complete understanding of the Marine Corps Policy Concerning the Illegal Use of Drugs on 24 July 2006. The highest rank achieved by the Applicant during his enlistment was E- 1 /Private.

During the Applicant ’ s period of service, he received three paragraph 6105 retention-counseling warnings. Additionally , while at his Military Occupational Specialty training school , he was subject to two nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, 20070107 - 20070207, 32 days) and Article 115 (Malingering, 2 specifications [ Specification 1: Intentionally injure self by cutting wrist with a razor (20070212)] and [ Specification 2: Feigning mental derangement (20070222)]). Moreover, the Applicant was also subject to a punitive S pecial C ourt -M artial proceeding on 10 October 2007 for the following violations of the UCMJ: Article 86 (Absence without leave, 20070519 - 20070807 ( 80 days - terminated by apprehen sion ) and Article 112a (Wrong ful use of controlled substance , 2 specifications [ Specification 1: Wrongful use of methylenedioxymethamphetamine ( E cstasy), 1161 ng/m l ] and [ Specification 2: Wrongful use of marijuana, 28 ng/m l ]). During th e period of unauthorized absence, the Applicant was dropped from his unit rol l s after 30 days of continued absence and was declared a Deserter; a DD Form 553 (Deserter/Absentee Wanted by the Armed Forces) was issued to Federal, State, and local law enforcement agencies seeking his apprehension and return to military custody. The Applicant was apprehended by civilian law enforcement officials and was r eturned to military custody, ending his unauthorized absence status . A qualified legal defense counsel represented the Applicant during his trial by Special Court-Martial. The Applicant was tried in accordance with a signed pre- trial agreement in which he pled guilty before a judge alone. Given the facts of the case, the military trial judge awarded the Applicant a Bad Conduct Discharge and confinement for a period of 90 days. The case was submitted for review to the U.S. Navy–Marine Corps Court of Criminal Appeals without assignments of error; 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 effected on 26 August 200 8 .

Nondecisional Issue : The Applicant seeks an upgrade in the characterization of his service at discharge in order to facilitate reenlistment in the armed forces. The 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, there is no requirement, or law, that grants re-characterization solely on the issue of facilitating reenlistment or employment opportunities or access to v eterans benefits programs. Regulations limit the NDRB’s review solely to a determination of clemency based on matters regarding the equity of a discharge when considering a change to a punitive Bad Conduct Discharge. As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.

Decisional Issue: (Clemency/Equity) RELIEF NOT WARRANTED. The Applicant seeks clemency in the form of an upgrade in the characterization of his service at discharge, contending that he was young and immature at the time of enlistment and made a rash decision to join the Marine Corps. Additionally, the Applicant contends that recruiter misconduct regarding his pre-service drug use mitigat es his misconduct in service. 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 for misconduct, especially deliberate and repetitive misconduct. Moreover, despite a servicemember’s prior record of service , certain serious offenses warrant separation from the Naval Service to maintain proper order and discipline. The pattern of documented unauthorized absences and general contempt for good order and discipline is not minor misconduct and supports the findings of the court - martial in awarding a Bad Conduct Discharge.

The Applicant enlisted with a waiver from the Recruiting District Commanding Officer for pre-service drug use - 14 admitted uses of marijuana. Regardless of any possible recruiter misconduct that may have occurred, the Applicant was counseled on the Marine Corps zero-tolerance p olicy regarding i llegal d rug u se , and he attested to fully understanding that policy - in writing. This was a condition to his enlistment acceptance. While the Marine Corps may not have known the full extent of his pre-service drug use, the Applicant did know the Marine Corps policy regarding illegal drug use in service. As such, the NDRB determined that the Applicant lacks any merit to warrant clemency.

 D ue to the Applicant’s chronic and extensive periods of unauthorized absence and attempts to avoid service, the Command opted for punitive punishment via trial by co urt - martial for the last misconduct of record , instead of the more lenient administrative discharge process. The Applicant was subject to a S pecial C ourt -M artial for a period of unauthorized absence in excess of 30 days (80 days - ended by apprehension). Unauthorized a bsence , in excess of 30 days , is a serious military offense, warranting adjudging of a Bad Conduct Discharge and confinement for up to one year. In the Applicant’s specific case, the military judge determined that retention and rehabilitation was not warranted and adjudged punishment to include a Bad Conduct D ischarge. The Applicant’s misconduct documents a pattern of misconduct related to unauthorized absence , avoidance of duties, illegal drug use, and a general failure to conform to military rules and regulations. 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 short period of the Applicant’s service, coupled with the repetitive and extensive nature of the misconduct, ended only by apprehension, the NDRB agreed unanimously that the punishment, as awarded, was warranted and was equitable; 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 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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