Upgrade.Vet

USMC | DRB | 2011_Marine | MD1100206

Original file (MD1100206.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20101102

Characterization of Service Received:

Narrative Reason for Discharge:

Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:                       OR UNCHARACTERIZED
         Narrative Reason change to:

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       19990119 - 19991011     Active:

Period of Service Under Review:
Date of Current Enlistment: 19991012     Age at Enlistment:
Period of E nlistment : 5 Years Months
Date of Discharge: 20020904      H ighest Rank:
Length of Service : Y ea rs M on ths 24 D a ys
Education Level:        AFQT: 73
MOS: 2800
Proficiency/Conduct M arks (# of occasions): NFIR / NFIR          Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle SS

NJP: NONE         SCM: NONE                  CC: NONE

SPCM: 1

- 2000110 9 :       Art icle 86 (Absence without leave, U nauthorized Absence - A bsented himself from his unit, without authority, on 2000060 1 and did remain so absent until 2000091 2 ( 102 days) - absence terminated by surrender to military authorities)
         Article 112a (Wrongful use , possession, etc., of a controlled substance, 2 specifications )
         Specification 1: Wrongful use of a controlled substance - methamphetamine
         Specification 2: Wrongful use of a controlled substance - marijuana
         Sentence Adjudged : BCD, RIR , CONF 4 months (20001109 - 2000121 5 , 3 7 days)
                  Convening Authority Action: The sentence is approved, and except for the Bad Conduct Discharge, is ordered executed. All confinement in excess of 45 days is suspended in accordance with the terms of the pre-tr i al agreement.

Retention Warning Counseling : 2

- 20001107 :       For failure to maintain Marine Corps height and weight standards

- 20001218 :       For refusing to be evaluated by a Substance Abuse Center medical officer

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

Issue 1: The Applicant seeks an upgrade in the characterization of his service at discharge in order to facilitate employment opportunities.

Issue 2: The Applicant believes his post-service conduct is worthy of consideration.

Decision

Date: 20 1 2 0412 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 particular case merited clemency.

The Applicant’s service record indicates he entered military service at age 17 (with parental consent) on a five- year enlistment contract under a guarantee of Ground Electronic Equipment Repair option . The Applicant’s enlistment record reflects his entry into military service with a waiver to enlistment and induction standards for pre-service illegal drug use (marijuana) and for exceeding the Marine Corps height/weight standards . As a function of his enlistment, the Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs - in writing - on 18 January 1999 . The highest rank achieved by the Applicant during his enlistment tenure wa s E-2/Private First Class. The Applicant’s record of service documents two 6105 retention- counseling warnings and one S pecial C ourt- M artial for violations of the Uniform Code of Military Justice (UCMJ) , specifically : Article 86 (Absence without leave, unauthorized absence - absented himself from his unit, without authority, on 20000602 and did remain so absent until 20000913 (102 days) - absence was terminated by surrender to military authorities) and Article 112a (Wrongful use of controlled substance, 2 specifications : Specification 1: Wrongful use of methamphetamine and Specification 2: Wrongful use of marijuana). Based on the violation of Article 112a, processing for administrative separation from the Naval Service , at a minimum, was mandatory. Given the length of absence coupled with the polysubstance abuse, the command opted for punitive punishment and discharge, vice administrative processing. A qualified legal defense counsel represented the Applicant throughout the trial by Special Court-Martial process. In accordance with a signed pre-trial agreement, the Applicant requested trial by judge alone and pled guilty to the charges, 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, reduction in rank to E-1/Private, and confinement for a period of 4 months . The Applicant served 37 days of the sentence before being released from confinement due to the sentence limitations contained within the pre-trial agreement and credit for good time. 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 03 October 2003. Subsequently, the Applicant submitted an appeal to the C ourt of Appeals of the Armed Forces; the petition for appeal was denied. Accordingly, 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.

Issue 1: ( Nondecisional) The Applicant seeks clemency in the form of an upgrade in the characterization of his service at discharge in order to facilitate employment opportunities. There is no requirement, or law, that grants re-characterization solely on the issue of facilitating employment opportunities. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities , reenlistment, or to facilitat e access to Department of Veterans Affairs (VA) benefits. 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.
Issue 2: ( Decisional ) (Clemency/Equity) CLEMENCY NOT WARRANTED. The Applicant seeks a change in the characterization of his service at discharge to Honorable , General (Under Honorable Conditions) , or Uncharacterized , contending that his post - service efforts are worthy of consideration . 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 86 (in excess of 30 days) and Article 112a are such offense s . Moreover, violation of Article 112a requires mandatory processing for administrative separation regardless of grade , performance, 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 S pecial or G eneral C ourt- M artial. In the Applicant’s case, the command originally opted to pursue the more lenient nonjudicial punishment and processing for administrative discharge following the illegal drug use identification in May 2000. However, while pending processing for separation, the Applicant absented himself from his assigned unit, without authority, for a period of 102 days. During this period of unauthorized absence, the Applicant was dropped from his unit’s 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. Upon the Applicant’s surrender to military custody, he was referred to trial by S pecial C ourt -M artial to adjudicate the multiple violations of the UCMJ. Referral of charges to trial by S pecial C ourt -M artial was proper, was within the Command’s authority, and was consistent with service norms.

The NDRB considers 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. Besides the Applicant’s statement on the DD Form 293, he provided a copy of his college transcripts indicating that he is nearing completion of his Bachelor ’ s Degree from an accredited institution. Additionally , the Applicant provided documentation of completion of a substance abuse treatment program , documentation of the awarding of sole legal custody of his child , and one character reference letter . The Applicant should be aware submission of these items alone does not guarantee an upgrade from an unfavorable discharge, as each discharge is reviewed by the NDRB on a case-by-case basis. The NDRB determined the Applicant’s post-service documentary evidence, though positive, was not enough to establish a basis for relief.

The Applicant’s misconduct clearly documents a pattern of misconduct related to a general failure to conform to military rules and regulations as evidenced by illegal drug use (marijuana and methamphetamines) and extensive unauthorized absence (102 days) . Due to the Applicant’s refusal to conform to the expected conduct of a United States Marine, coupled with the need to maintain good order and discipline of the service, the military judge determined that retention and rehabilitation was not warranted ; accordingly, he awarded a punitive Bad Conduct Discharge. After reviewing the Applicant’s issue, the supporting documentation, and the evidence of record as 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 ; this warranted the awarding of a Bad Conduct Discharge. The NDRB discerned no inequity in the characterization of service and determined that clemency was not warranted. Accordingly, by a vote of 5-0, the NDRB determined that the characterization of service shall not change. 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 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), 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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USMC | DRB | 2011_Marine | MD1100206

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