Upgrade.Vet

USMC | DRB | 2011_Marine | MD1100244

Original file (MD1100244.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20101108

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)       20001229 - 20010103     Active:

Period of Service Under Review:
Date of Current Enlistment: 20010104     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20051206      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 25 D a y ( s )
Education Level:        AFQT: 31
MOS: 9900
Proficiency/Conduct M arks (# of occasions): ( NFIR ) / 1.3 ( NFIR )         Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle ,

Periods of unadjudicated UA /CONF : UA: 20010801-20010904 ( 34 days ); pre-trial confinement 20010905-20010928 ( 23 days ) ; In hands of civilian authorities (Oswego County Police) 20021021 - 20030220)

NJP:

- 20010620 :       Article 86 ( Absence without leave; U nauthorized A bsence from 20010515 to 20010614 ( 29 days) , absence terminated by surrender to military authorities )
         Awarded :      Susp ended:

- 20010717 :       Article 112a (Wrongful use , possession, etc., of a controlled substance - wrongful use of marijuana between 20010520 to 20010620 through self-admittance )
         Awarded :      Susp ended:

SCM:

SPCM:

- 20030327 :       Art icle ( Absence without leave; Unauthorized Absence from 20011115 to 20021021 (340 days) - absence terminated by apprehension by civilian authorities )
         Sentence Adjudged : , , ( Pre-tri a l credit: IHCA 2003021 8 -2003022 0 (3 days ) and Pre-trial confinement 20030221-20030227 ( 7 days ) - 10 day s credited to adjudged sentence)
         C onvening Authority Action : 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 adjudging confinement in excess of 7 days will be suspended for a period of 6 months from the date of trial, at which time, unless sooner vacated, the suspended portion will be remitted without further action .

CC: Date NFIR (Service record documents Applicant In Hands of Civilian Authorities (Oswego County Police Department) from 20021021 to 20030218 (123 days); released without trial and turned over to military authority for military prosecution for Desertion/Unauthorized Absence)

Retention Warning Counseling :

- 20010619 :       For your absence from SOI, TngCmd, CamLej, from 1800, 20010515 to 1400, 20010614.

- 20010713 :       For yourself admitta nce to usage of a controlled substance (marijuaua)

Administrative Corrections to the Applicant’s DD 214

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

         “ (2 9 ) 20010515-2001061 4 , (3 4 ) 20010801-20010904, (23) 20010905-20010927, (340) 20011115-20021020, (126) 20021021-2003022 0 ”

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 P1900.16F), 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 502, Propriety and 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 access to medical disability benefits from the D epartment of Veterans Affairs.

Issue 2: The Applicant contends that his misconduct of record was the result of stress from depression and anxiety related to personal relationship problems , which warrants consideration as extenuating and mitigating factors to his discharge and the characterization of service he received . T he Applicant contends his characterization of service at discharge was inequitable; his youth and immaturity at the time led to poor judgment and is a mitigating factor to his misconduct of record.

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 21 on a four year enlistment contract under a n Open Contract enlistment option. The Applicant’s enlistment record reflects his entry into military service with a waiver to enlistment and induction standards for pre-service illeg al drug use (marijuana) and a moral waiver for multiple serious offenses. 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 21 December 2000 . The highest rank achieved by the Applicant during his enlistment tenure was E- 3 / Lance Corporal.

The Applicant’s record of service documents two 6105 retention-counseling warnings for his misconduct and illegal drug usage and two non-judicial punishments (NJP s ) for violation s of the Uniform Code of Military Justice (UCMJ). Specifically, the Applicant violated Article 86 (Absence without leave - absented himself from his unit, without authority, on 20010515 and did remain so absent until 20010614 (29 days) , absence terminated by surrender to military authorities) and violation of Article 112a (Wrongful use of controlled substance, marijuana). Based on the NJP for violation of Article 112a, processing for administrative separation from the Naval Service, at a minimum, was mandatory. However, the Applicant again absented himself from his unit from 01 August 2001 to 04 September 2001 (34 days) - this absence was terminated through apprehension by civilian law enforcement authorities. The Applicant was placed in pre-tria l confinement pending trial by S pecial C ourt -M artial; after 23 days of confinement, the Applicant was released , as the command believed he was no longer a flight risk. The record reflects that approximately 45 days later, the Applicant again absented himself from his command, without authority, and remained absent until apprehended by civilian law enforcement agencies (20011115 to 20021021 - 340 days absence).

The record further reflects that the Applicant remained in the hands of civilian law enforcement authorities (Oswego County Police Department) for 123 days , pending civilian charges, but was released without prosecution and returned to military custody. Given the length of absence , coupled with the history of previous misconduct to include drug abuse , the command opted for punitive punishment and discharge by trial by S pecial C ourt -M artial , vice administrative discharge 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 charge, 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 30 days . The Applicant served 10 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 with assignment s 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 27 July 2005 . Subsequently, the Navy Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed and the Applicant was discharged from the Armed Services with a Bad Conduct Discharge.

Issue 1: (Nondecisional) 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 ; in the case of a punitive court - martial, the NDRB is further restricted to awarding clemency based on issues of equity . As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief. T he Applicant is directed to the Addendum , specifically, the paragraph regarding the U.S. Department of Veterans Affairs who determines eligibility for post-service benefits, not the NDRB. The VA conducts its own determination of eligibility based on service records review and input from an A pplicant. The Applicant should refer to the Veterans Administration website ( http://www.vba.va.gov/VBA/ ) for additional assistance.
Issue 2: ( Decisional ) (Clemency/Equity) CLEMENCY NOT WARRANTED. The Applicant contends that his misconduct of record was the result of stress from depression and anxiety related to personal relationship problems, which warrants consideration as extenuating and mitigating factors to his discharge and the characterization of service he received. Furthermore, the Applicant contends his characterization of service at discharge was inequitable; his youth and immaturity at the time led to poor judgment and is a mitigating factor to his misconduct of 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. Moreover, the NDRB recognizes that serving in the military is challenging; however, most service members serve honorably and therefore earn their honorable discharges. In fairness to those service members, commanders and separation authorities are tasked to ensure that undeserving Sailors and Marines 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, Mental Health professionals, Navy Relief Society, Substance Abuse Counseling Centers, or Family Advocacy Programs. By the Applicant’s personal statement, he was seen and treated by mental health professionals for depression. However, the NDRB determined that this was not ample justification to absent himself from his unit for 34 days, then again for 340 days. The NDRB determined the Applicant’s youth, immaturity, and personal problems were not mitigating factors in his misconduct .

Despite a servicemember’s prior record of service, certain serious offenses 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 or time in service ; t his 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 originally opted to pursue the more lenient nonjudicial punishment and processing for administrative discharge following the initial absence and illegal drug use identification in June and July of 2001 . However, while pending processing for separation, the Applicant absented himself from his assigned unit, without authority, twice , for period s of 34 days and 340 days, with each absence terminated through apprehension by civilian law enforcement officials . Upon the Applicant’s return to military custody, he was referred to trial by S pecial C ourt -M artial to adjudicate the unauthorized absence of 340 days . 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 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 extensive unauthorized absence s ( 29 days, 34 days, 340 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 s , his nine letters of character reference that he submitted, and the evidence of record as contained in the record of trial, the NDRB determined that the Applicant’s misconduct 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 . These a ctions warranted a Bad Conduct Discharge. Accordingly, the NDRB determined that clemency was not warranted.

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 | MD1100244

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