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USMC | DRB | 2011_Marine | MD1100109
Original file (MD1100109.rtf) Auto-classification: Denied
ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20101014
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)       20050715 - 20050925     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20050926     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20090403      H ighest Rank:
Length of Service : Y ea rs M on ths 09 D a ys
Education Level:        AFQT: 72
MOS: 3043
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle GWOTSM NDSM NUC

Periods of UA :

NJP: NONE        SCM: NONE                  CC: NONE

SPCM: 1

- 20080515 :       Art icle 81 (Conspiracy, distribute controlled substances to a PFC)
         Article 112a (Wrongful use, possession, etc. of a controlled substance ; specifically, wrongful distribution of a controlled substance (morphine) - 2 specifications)
          Sentence Adjudged : BCD, RIR E-1 , CONF 8 months (20080515 - 20080906, 113 days)
         Convening Authority Action : The sentence is approved and, with the exception of the BCD, is ordered executed. In accordance with the Pre-Trial Agreement, all confinement in excess of 150 days is suspended and the automatic forfeitures are waived. The Accused is credited with 8 days pre -trial confinement.

Retention Warning Counseling : 4

- 20070508:      For substantiated incident of domestic violence against spouse

- 20070509:      For unauthorized absence from 0545 - 0615 on 20070509 and drinking within eight hours prior to duty

 - 20070907 :       For physical condition not a disability : cervicalgia

- 20071001 :       For cervicalgia, treatment has been exhausted and prognosis for future improvement is deemed very low




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 an upgrade in the characterization of his service at discharge in order to facilitate access to Department of Veterans Affairs (VA) medical disability benefits.

Decisional Issues: The Applicant seeks clemency, contend ing that his misconduct of record was an isolated incident in his service and was the result of stress from depression and marital problems . The Applicant contends his discharge was inequitable as he was not treated fairly by his unit personnel during his discharge , received bad legal advice, and was set- up when he was arrested.

Decision

 Date: 20 1 20328                    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 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 par ticular case merited clemency.

The Applicant’s service record indicates he entered military service at age 19 on a four-year enlistment contract under the Supply/A dministration option. The Applicant’s enlistment record reflects entry into military service with a waiver to enlistment and induction standards for an adjudicated serious law violation offense . The highest rank achieved by the Applicant during his enlistment was E- 3 / Lance Corporal . The Applicant’s record of service included four paragraph 6105 retention-counseling warnings and one S pecial C ourt- M artial for violations of the Uniform Code of Military Justice (UCMJ): Article 81 (Conspiracy to distribute a controlled substance) and Article 112 ( a ) (Wrongful use, possession, etc. of a controlled substance - wrongful distribution of a controlled substance ( morphine ) , 2 specifications). The Applicant did not have a pre-service waiver for illegal drug use prior to entering the Marine Corps but acknowledged his complete understanding of the Marine Corps Policy C oncerning I llegal D rug U se - in writing - on 13 July 2005. T he Applicant ’s service record documents a punitive conviction and punishment , as adjudged by a S pecial C ourt -M artial , on 15 May 2008 . A qualified legal defense counsel represented the Applicant throughout the trial by Special Court-Martial process. Given the facts of the case, the Special Court - Martial awarded the Applicant a Bad Conduct Discharge and confinement for a period of 8 months. The Applicant had a Pre-Trial Agreement (PTA) in place: H e agreed to plead guilty before a Military Judge alone and to testify in the companion case scheduled for trial by General Court - Martial in exchange for a limitation on any adjudged confinement and forfeitures. 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 Bad Conduct Discharge was executed on 3 April 200 9 .

Nondecisional Issue - The Applicant seeks an upgrade to his discharge characterization of service in order to achieve eligibility for Department of Veterans Affairs (VA) medical benefits and counseling. There is no requirement, or law, that grants re-characterization solely on the issue of facilitating access to VA benefits. 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 which the NDRB can grant relief.

Decisional Issue (Clemency/Equity) RELIEF NOT WARRANTED. (1) The Applicant seeks clemency, contend ing that his misconduct of record was an isolated incident in his service and was the result of stress from depression and marital problems . (2) The Applicant contends his discharge was inequitable as he was not treated fairly by his unit personnel during his discharge, received bad legal advice, and w as set-up when he was arrested.

Propriety - 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; matters of propriety are decided and upheld through the appellant’s right to legal review process - t he Navy and Marine Corps Court of Criminal Appeals and the Court of Appeals of the Armed Forces . As such, mat t ers of propriety are not within t he authority of the NDRB in relation to punishment as adjudged in a punitive trial by court - martial. The NDRB , however, did conduct a thorough review of the Applicant’s discharge under the pertinent standards of equity to determine if any factors in this particular case merited c lemency.

Equity Issue 1 - The Applicant seeks clemency, contend ing that his misconduct of record was an isolated incident in his service and was the result of stress from depression and marital problems. The Applicant’s service record documents a period of service of approximately 27 months prior to engaging in the misconduct of record for which he was discharged. However, during this period, he was counseled on substantiated incidents of domestic violence against his spouse, consuming alcohol within the restricted eight - hour period prior to assuming duty, and a period of unauthorized absence. The NDRB recognizes that serving in the military is challenging. Most service members, however, serve honorably and therefore earn their H onorable or General discharges. In fairness to those service members, commanders and separation authorities are directed to ensure that undeserving Marines and Sailors receive no higher characterization than is due. There is no evidence in the record, nor did the Applicant provide any documentation, to indicate he attempted to u se the numerous services available for service members who undergo personal problems during their enlistment s such as the Navy Chaplain, Medical or Mental Health professionals, Navy Relief Society, Family Advocacy Programs, or even the Red Cross. The NDRB determined the Applicant’s personal problems were not mitigating factors in his misconduct. 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 misconduct of the nature specified. The Applicant’s service record documents one incident of adjudicated misconduct after approximately 27 months of credible service ; however, c ertain serious offenses warrant separation from the service to maintain proper order and discipline. Violation of Article 112a is one such offense , which by acknowledged service policy (USMC drug policy signed 2005/07/13), requir es mandatory processing for administrative separation , regardless of grade , time in service , or combat service . This action usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a S pecial or G eneral C ourt- M artial. Given the charges of conspiracy and distribution of morphine, t he Applicant’s command opted to pursue a punitive discharge through trial by court - martial vice the more lenient administrative discharge. The NDRB found the evidence of record did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offense for which the discharge was awarded and that an upgrade would be inappropriate. Relief denied.

Equity Issue 2 - The Applicant contends his discharge was inequitable as he was not treated fairly by his unit personnel during his discharge, received bad legal advice, and was set-up when he was arrested. The Applicant provided no specific issues related to the allegation of mistreatment by his unit personnel ; as such, the NDRB had to presume regularity in governmental affairs. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case . Throughout the trial by court - martial period, a credentialed military defense counsel represented the Applicant. Matters related to the quality of legal advice or investigative impropriety or violations of rights are legal matters addressed during the trial by court - martial or the legal appeal process. As such, these issues did not create sufficient mitigating or extenuating factors to offset the seriousness of the offense for which the discharge was awarded. The documented conspiracy to distribute morphine and the two specifications of distribution, coupled with the Applicant’s 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 short period of the Applicant’s service, coupled with the nature of the misconduct, the NDRB agreed unanimously that the punishment, as awarded, was warranted and was equitable; it was, and remains, a proper reflection of the Applicant’s service and reason for discharge. Re lief denied .






NDRB Board Issue - D epartment of Defense disability regulations do not preclude a disciplinary separation. SECNAVINST 1850.4E stipulates that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board (PEB), and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The PEB 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 .

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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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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