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USMC | DRB | 2010_Marine | MD1002321
Original file (MD1002321.rtf) Auto-classification: Denied
ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20100924
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)       19921208 - 19930124     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19930125     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19980527      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 03 D a y ( s )
Education Level:        AFQT: 36
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

NJP:

- 19931215 :       Article ( Absent without leave , 2 specifications )
         Specification 1: Unauthorized Absence from 0530, 19931101 until 2045, 19931110 ( 9 days )
         Specification 2: Absent from appointed place of duty
         Awarded : , CCU 7 days Susp ended: RESTR CCU

- 19951222 :       Article ( Assault - Did physically a ssault another Marine ( PFC ) on or about 2050, 19951124)
         Article (Disorderly conduct on or about 2050, 19951124)
         Awarded : Susp ended:

SCM:     CC:

SPCM:

- 19970310 :       Art icle ( Absence without leave - Did absent himself from his unit, without proper authority, on 19960718 and did remain so absent until surrendering himself to military authority on 19960825, a period of unauthorized absence of 39 days)
         Article 112a (Wrongfully use , possession, etc of a controlled substance ( marijuana ) between 19960812 and 19960826)
         Sentence Adjudged : , , (19970310-19970402, 23 days)

Retention Warning Counseling :

- 19950917 :       For poor physical performance, specifically, on 19950630 you fe l l out during a battalion 3 - mile run. These incidents of falling back during platoon and company runs have become a habit with you an d will no longer be tolerated.

- 19960104 :       For poor performance of duties as Fire Team Leader, specifically falling out of a Company run on 19960104 stating: “I quit ” to the Platoon Sergeant displaying a poor attitude and lack of intestinal fortitude.

- 19960108 :       For failure to sign in with the OOD for company commanders restrictions on or about 0700, January 1996.

- 19961008 :       For being assigned to continuing care program , which was terminated on 19960509 , due to non-attendance , DW I with a BAC of .13 % after completion of Level III treatment , and UA from re-evaluation appointment on 19960424. SNM considered a treatment failure IAW MCO 5300.12.

Administrative Corrections to the Applicant’s DD 214

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

          Block 5, Date of Birth, should read: “721217”
 “ BAD CONDUCT DISCHARGE ”
         “ COURT-MARTIAL ”
         “ (38) 960718-960825, (23) 970310-970402 ”

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:   
                                             Verbatim Record of Trial by SPCL CM
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 .

B. 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

 1.       Nondecisional issues: The Applicant seeks a change in his reenlistment code (RE-Code).

2.       Decisional issues : The Applicant seeks clemency, contend ing that his characterization of service at discharge was inequitable; personal circumstances, including his ongoing divorce , financial issues, and child welfare issues led to poor judgment and are mitigation for his misconduct of record. The Applicant contends his characterization of service at discharge was inequitable and overly harsh ; his misconduct of record was an isolated and minor incident in what was an otherwise outstanding military career. The Applicant contends that he should have been medically discharged based on the results of a Physical Evaluation Board that recommended separation with partial disability.

Decision

 Date: 20 1 20103           Location: Washington D.C .         R epresentation :

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 special 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 reviewed under the pertinent standards of equity to determine if any factors in this particular case merited clemency.

The Applicant’s service record documents that he entered active duty service at age 19 , on a four-year enlistment contract , under an Open Contract option - ultimately receiving training as an Infantryman. The Applicant’s enlistment record reflects 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 . The highest rank achieved by the Applicant during his enlistment was E- 3 / Lance Corporal . During the Applicant ’ s period of service, he received four paragraph 6105 retention-counseling warnings. Additionally, throughout his enlistment period , h e was subject to two nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, 2 specifications: failure to be at appointed place of duty and unauthorized absence for 9 days) , Article 1 28 (Assault) , and Article 134 (Disorderly c onduct) . The Applicant’s service record also documents assignment to Level III intensive inpatient treatment for alcohol abuse with subsequent assignment to a n aftercare treatment program. The Applicant was determined to be a treatment failure in accordance with Marine Corps Order 5300.12 due to failure to comply with aftercare requirements, driving while intoxicated (BAC of 0.13%) while assigned to a L evel III aftercare program , and his failure to attend a re-evaluation app ointment.

Moreover, the Applicant also was subject to a punitive S pecial C ourt -M artial proceeding on 10 March 1997 for the following violations of the UCMJ: Article 86 (Absence without leave, 19960719 to 19960825 ( 38 days - terminated by surrender ) and Article 112a (Wrongful use , possession, etc., of controlled substance - wrongful use of marijuana). During this period of unauthorized absence, the Applicant was dropped from his unit rol l s after 30 days of continuous absence and was declared a Deserter. The Applicant surrendered himself to military custody , thereby terminating his unauthorized absence. A qualified legal defense counsel represented the Applicant throughout the trial by Special Court-Martial process . The S pecial C ourt -M artial was conduct ed without any pre-trial agreement ; t he Applicant elected to be tried by military judge alone and entered a mixed plea of guilty to the drug use charge (112a), but not guilty to the unauthorized absence charge (86) . Given the facts of the case, the military trial judge awarded the Applicant reduction to pay grade E-1, confinement for a period of 3 0 days , and a Bad Conduct Discharge . The Convening Authority agreed with the adjudged sentence and ordered it executed. The case was submitted for review to the U.S. Navy–Marine Corps Court of Criminal Appeals with an assignment of error; it was reviewed by the court 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 27 May 1998 .

Nondecisional Issue : The Applicant seeks a change in his reenlistment code (RE-Code). 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) CLEMENCY NOT WARRANTED. 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) . The Applicant contends that his characterization of service at discharge was inequitable; personal circumstances, including his ongoing divorce, financial issues, and child welfare issues led to poor judgment and these factors were mitigation for his misconduct of record. According to the Applicant’s testimony during the trial by court-martial, the Applicant requested annual leave for 16 days, but his request was denied due to a pending medical separation. There is no evidence in the record, nor did the Applicant provide any documentation, to indicate he attempted to utilize the numerous services available for service members who undergo personal problems during their enlistment such as the Navy Chaplain, Medical or Mental Health professionals, Navy Relief Society, Family Advocacy Programs, the Red Cross, or even his own command . The Verbatim Record of Trial by Court - Martial also documents that the Applicant chose not to inform the command of the personal issues behind his request for leave and instead opted to absent himself from his appointed place of duty, without authority, and then remained so absent until surrendering himself 38 days later. 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 receive no higher characterization than is due. The NDRB determined the Applicant’s personal problems were not mitigating factors for the documented misconduct of record and do not warrant clemency . Clemency not warranted .
The Applicant contends his characterization of service at discharge was inequitable and overly harsh; his misconduct of record was an isolated and minor incident in what was an otherwise outstanding military career. D ue to the Applicant’s extensive period of absence (38 days), coupled with a positive urinalysis for illegal drug use (marijuana) and two previous nonjudicial punishments for other misconduct , the Command opted to pursue punitive punishment via trial by court - martial instead of the more lenient administrative punishment and discharge process. Trial by S pecial or G eneral C ourt -M artial is a punitive action, not administrative - the only options available for discharge from the service by t he court is punitive in nature: a Bad Conduct Discharge. The Applicant ’s service record documented two nonjudicial punishments, a driving while intoxicated charge, and Level III Alcohol Treatment Program failure, prior to this misconduct of record . Due to the Applicant’s refusal to conform to the expected conduct of a United States Marine, coupled with the need to ensure good order and discipline of the service, the Command referred the unauthorized absence and illegal drug use charges to trial by Special Court - Martial. A bsence in excess of 30 days is a serious military offense, warranting a Bad Conduct Discharge and confinement for up to one year , if adjudged as part of a sentence in trial by court - martial . In the Applicant’s specific case, the military judge determined that retention and rehabilitation was not warranted ; as such, a punishment to include a Bad Conduct D ischarge was adjudged . The NDRB found the characterization of the Applican t’ s discharge was equitable and his separation from the Marine Corps consistent with others in similar circumstances. Clemency not warranted.

The Applicant contends that he should have been medically discharged based on the results of a Physical Evaluation Board, which recommended separation with partial disability. D epartment of Defense disability regulations do not preclude a disciplinary separation. Secretary of the Navy Instruction 1850.4 C stipulates that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board and subsequently is processed for an administrative involuntary separation for misconduct, or is adjudicated a punitive discharge, the disability evaluation is suspended. The P hysical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record.

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 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 period of the Applicant’s service, coupled with the repetitive and serious nature of the misconduct, and the Applicant’s own testimony of intentional illegal drug use to accelerate the discharge process , the NDRB agreed unanimously that the punishment, as awarded, was warranted and was equitable; relief in the form of clemency is not warranted.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, the verbatim 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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