Upgrade.Vet

USMC | DRB | 2011_Marine | MD1100057

Original file (MD1100057.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20101007

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)       19910518 - 19920205     Active:

Period of Service Under Review:
Date of Current Enlistment: 19920206     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19960823      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 06 D a y ( s )
Education Level:        AFQT: 50
MOS: 1345
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:
Awards and Decorations ( per DD 214):      Rifle , LoA , , MM

NJP:

- 19920923 :       Article (Failed to go to appointed place of duty at the time prescribed, 0900 to or about 1500, on 19920905)
         Awarded : CC w/suspension from duty for 28 days Susp ended: 14 days CC for 4 months

- 19930225 :       Article ( Violate a lawful order, driving while base driving privileges were suspended)
         Awarded : Susp ended: Vacated 19930325

SCM:     CC:

SPCM:

- 19950627 :       Art icle (Wrongful use, possession, etc ., of controlled substance), 2 specifications
         Specification 1: Wrongful use of marijuana between 19950336 and 19950410
         Specification 1: Wrongful use of marijuana between 19950510 and 19950525
         Sentence : , CONF 100 days (199505 31 -19950 627 , 28 days pre-trial confinement ) ,
         C onvening Authority A ction : The sentence is approved and, except for the B ad C onduct D ischarge, will be executed, but the execution of that part of the sentence extending to confinement in excess of 30 days is suspended for a period of 12 months from the date sentence was adjudged, at which time, unless sooner vacated, the suspended part of the sentence will be remitted without further action.

Retention Warning Counseling :

- 19920904 : F or failure to go to your appointed place of duty at the time prescribed.

- 19920923 : F or failure to go to your appointed place of duty at the time prescribed.

- 19921217 :       For low academic scores.

- 19930506 : For pattern of misconduct, A rticle 86 dated 19920923 and A rticle 92 dated 19930301.
Administrative Corrections to the Applicant’s DD 214

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

         “ 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 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 requesting an upgrade in the characterization of his service at discharge in order to facilitate reenlistment in the Armed Forces .

Decisional issues : The Applicant contends the Bad Conduct Discharge was overly harsh for a single use of m arijuana in service that was otherwise honorable.

Decision

Date: 20 1 20119 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 17 (with parental consent) on a 5-year enlistment contract under a n Aviation Contract, but after being dropped from the school, was reverted to an Open Contract for 4 years and was ultimately trained as a n Engineering Equipment Operator. The Applicant’s enlistment record reflects his entry into military service with a waiver to enlistment and induction standards for pre-service adjudicated minor traffic violations. As a function of his enlistment, the Applicant a cknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs - in writing - on 17 May 1991 . The highest rank achieved by the Applicant during his enlistment tenure was Lance Corporal .

The Applicant’s record of service documents four retention-counseling warnings related to misconduct, academic failures, and for establishing a pattern of misconduct. The Applicant’s service record further reflects two nonjudicial punishments for violation s o f the Uniform Code of Military Justice (UCMJ) : Article 86 (Absence without leave - failure to go to appointed place of duty at time prescribed) and Article 92 (Violation of a lawful order or regulation). Additionally, the Applicant’s record of service documents a punitive Special Court - Martial for violation of Article 112(a) of the UCMJ (Wrongful use, possession, etc of a controlled substance - marijuana , 2 specifications) . A qualified legal defense counsel represented the Applicant throughout the trial by Special Court-Martial. In accordance with a signed pre-trial agreement, the Applicant requested trial by judge alone and pled guilty to the charge s , as specified, in exchange for a sentence limitation regarding confinement. Given the facts of the case, the military trial judge awarded the Applicant a Bad Conduct Discharge and confinement for a period of 10 0 days. The Applicant served 28 days of the 100 -day sentence before being released from confinement due to the sentence limitations contained within the pre-trial agreement . The case was submitted for review without 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 31 May 1996 . Subsequently, the Navy Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed and the Applicant was discharged from the Marine Corps with a Bad Conduct Discharge on 23 August 1996 .

Nondecisional Issue: The Applicant seeks clemency in requesting an upgrade in the characterization of his service at discharge in order to facilitate reenlistment in the Armed Forces. There is no requirement, or law, that grants re-characterization solely on the issue of facilitating reenlistment opportunities . Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing or facilitating employment opportunities or access to v eterans b enefits programs . Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge. In review of punitive discharges, the NDRB is further restricted to awarding clemency based on equity only - propriety is established by the appeal review process in the military courts of appeal. 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 contends his Bad Conduct Discharge was overly harsh for a single use of m arijuana in service that was otherwise honorable. Despite a servicemember’s prior record of service , certain serious offenses, even though isolated, warrant separation from the Marine Corps to maintain good order and discipline. Violation of Article 112a is one such offense , requiring mandatory processing for administrative separation regardless of grade or time in service. This action usually results in an unfavorable characterization of service at discharge or, at a maximum, a punitive discharge, and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. In the Applicant’s case, the command opted to pursue a punitive discharge instead of the more lenient administrative discharge. With two nonjudicial punishments and four retention warnings already in his record, t he Applicant failed a command urinalysis test for illegal use of a controlled substance (marijuana) - twice. The first urinalysis test was on or about 10 April 1995; w hile pending a command determination regarding that positive urinalysis, the Applicant failed a second command urinalysis test on or about 25 May 1995. Referral of charges to trial by S pecial C ourt -M artial was proper , was within the Command ’ s a uthority, and was consistent with service norms.

The Applicant seeks a change in the characterization of his service at discharge to Honorable. Characterization of service at discharge is the recognition of the quality of a Marine’s performance and conduct. An Honorable characterization of service is the highest quality of characterization and is appropriate when the quality of a Marine’s service has met the standards of accepted conduct and performance of duty for military personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. After reviewing the Applicant’s issue, the supporting documentation, and the evidence of record contained in the record of trial, the NDRB determined that the Applicant’s misconduct of record was conduct involving one or more acts or omission s that did constitute a significant departure from the conduct expected of members of the Naval Service (in-service drug usage). The NDRB did not discern an inequity in the characterization of service and determined that clemency was not warranted. A ccordingly, by a vote of 5-0, the NDRB determined that the characterization of service shall not change .

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 was not warranted. Therefore, the awarded characterization of service shall remain 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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USMC | DRB | 2011_Marine | MD1100057

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