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USMC | DRB | 2011_Marine | MD1100322
Original file (MD1100322.rtf) Auto-classification: Denied
ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20101124
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)       19960904 - 19970519     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19970520     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20030314      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 23 D a y ( s )
Education Level:        AFQT: 49
MOS: 0351
Proficiency/Conduct M arks (# of occasions): /          Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle , Pistol , (2) , , MM

Periods of UA :

NJP:     SCM:              CC:      Retention Warning Counseling :

SPCM:

- 20010510 :      Article ( Wrongful use, possession, etc., of a controlled substance , 2 specifications )
         Specification 1: Wrongful use of a controlled substance - methamphetamine s
         Specification 2 : Wrongful use of a controlled substance - marijuana
         Sentence Adjudged : , , 90 days (200 1 0510-20010710, 62 days)
         Convening Authority Action : The sentence is approved and, except for the bad conduct discharge, will be executed . Confinement in excess of seventy-five days is suspended for a period of six months and unless sooner vacated, will be remitted without further action.

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 access to Department of Veterans Affairs (VA) medical treatment benefits.

Issue 2: The Applicant contends his misconduct was an isolated incident and was the result of self-medicating pain from injuries after being removed from prescription painkillers .

Issue 3: The Applicant contends his misconduct was an isolated incident in what was an otherwise outstanding military career.

Issue 4: The Applicant contends his youth , immaturity , and personal problems related to marital discord at the time led to poor judgment and were mitigating factor s to his misconduct of record.

Issue 5: The Applicant believes his post-service efforts are w orthy 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 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. Accordingly , the Applicant ’ s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. Matters of propriety are addressed through the Courts of Appeal as a function of the Applicant’s legal rights.

The Applicant’s service record documents that he entered military service at age 18 on a four-year enlistment contract under an Infantry Option guarantee . The Applicant’s enlistment record further reflects t his entry into military service with waivers to enlistment and induction standards for pre-service illegal drug use - marijuana . During the enlistment process, the Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning the Illegal Use of Drugs - in writing - on 02 September 1996 . The highest rank achieved by the Applicant during his enlistment was E- 4 / Corporal . The Applicant’s enlistment contains one punitive conviction and punishment as adjudged by a S pecial C ourt -M artial on 1 0 May 200 1 . The Applicant was subject to trial for violation of Article 112a , two specifications of w rongful use, possession, etc, of a controlled substance - marijuana and methamphetamines. A qualified legal defense counsel represented the Applicant throughout his trial by Special Court-Martial. Given the facts of the case, the military trial judge awarded the Applicant a Bad Conduct Discharge, reduction in rank to E-1, and confinement for a period of 90 days. The Applicant was tried in accordance with a signed P re- T rial A greement (PTA) in which he agreed to plead guilty and accept trial by judge alone in exchange for leniency by the convening authority on matters of sentencing (no more than 75 days confinement and waiver of automatic forfeitures for dependent financial care purposes) . The case was submitted for review to the U.S. Navy - Marine Corps Court of Criminal Appeals with one assignment of error - that the sentence was to o severe ; the case was reviewed and the findings were affirmed on 13 September 2002 . The Applicant appealed the decision to the Court of Appeals of the Armed Forces; his petition for review was denied on 21 February 2003 . Subsequently, the Navy Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed. The Applicant’s final discharge was effect ed on 14 March 2003.




Issue 1: ( Nondecisional ) The Applicant seeks an upgrade to his discharge characterization of service in order to achieve eligibility for Department of Vetera ns Affairs (VA) medical benefits . 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. Concerning a punitive court - martial conviction, r egulations limit the NDRB’s review solely to a determination clemency based on matters of equity. As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.

Issues 2 and 3: ( Decisional ) (Clemency/Equity) CLEMENCY NOT WARRANTED. The Applicant contends his misconduct was an isolated incident and was the result of self-medicating to treat pain from injuries after being removed from prescribed painkillers . He also contends he had outstanding military service. Despite a service member’s prior record of service, certain serious offenses warrant separation from the Naval Service in order to maintain good order and discipline. Violation of Article 112a is one such offense, requiring mandatory processing for administrative separation, regardless of grade, combat experience, or time in service. This action usually results in an unfavorable characterization of service at discharge or, at a maximum, a punitive discharge with the possibility of confinement, if adjudicated and awar ded as part of a sentence by a S pecial or G eneral C ourt- M artial. Given the Applicant ’ s use of marijuana and methamphetamines, the command opted to pursue discharge via punitive court - martial vice the more lenient administrative separation process. The Applicant was tried before a judge alone ; he pled guilty to the charges as agreed upon in the PTA and specified on the court martial charge sheet - all remaining charges were withdrawn . The Military Judge found the Applicant guilty of the offense s , as charged, based on the Applicant’s testimony and awarded him the Bad Conduct Discharge , reduction to Private/E-1 , and confinement for 9 0 days.

The Applicant’s service record documents a period of service of approximately 3 year s and 9 months before testing positive for controlled substances and being referred to trial . Prior to this misconduct, the Applicant ’ s service record reflects no misconduct or formal counseling for deficiencies in his performance and conduct . The Applicant contends that he was suffering from excruciating physical and mental pain and that he was addicted to the prescribed painkillers (Vicodin and Percocet). According to the Applicant’s testimony, a fter being removed from prescription painkillers, he reverted to alcohol abuse, illegal prescription narcotics, as well as E cstasy , marijuana, and methamphetamines , becoming completely addicted to these substance s . T he Applicant tested positive on a command urinalysis for the illegal use of controlled substance s - methamphetamines and marijuana - in violation of Article 112a of the Uniform Code of Military Justice. The Applicant enlisted with a waiver from the Recruiting District Commanding Officer for pre-service drug use ( admitted use of marijuana ) . T he Applicant was fully advised of t he Marine Corps Policy R egarding Illegal Drug Use (Zero Tolerance Policy) , and he attested to fully understanding that policy - in writing. This was a condition to his enlistment acceptance. The NDRB determined that the Applicant’s illegal use of both prescription narcotics and illegal recreational drugs was wrongful use , not mitigated by his medical recovery status. The Applicant had numerous legal alternatives to deal with his “addiction” and t he need for continued pain treatment through his medical providers and Naval Hospital pain management clinics. Likewise, the Applicant had substance abuse counselors and substance abuse treatment centers that would have provided assistance with his abuse/addiction should he have sought out their assistance. Relief in the form of clemency is denied.

Issue 4: (Decisional) (Clemency/ Equity ) CLEMENCY NOT WARRANTED. The Applicant contends his youth , immaturity , and personal problems related to marital discord at the time led to poor judgment and were mitigating factor s 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, especially delibe rate and repetitive misconduct. Moreover, t he NDRB recognizes that serving in the military is challenging , however, m ost service members 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. 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, Mental Health professionals, Navy Relief Society, Substance Abuse Counseling Centers, or Family Advocacy Programs. The NDRB determined the Applicant’s youth, immaturity, and personal problems were not mitigating factors in his deliberate misconduct; as such, relief in the form of clemency is denied.

Issue 5: (Decisional) (Clemency/ Equity ) CLEMENCY NOT WARRANTED. The Applicant contends his post-service conduct warrants consideration for an upgrade to Honorable. There is no law or regulation to upgrade an unfavorable discharge based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. However, t he NDRB is authorized to consider outstanding post-service factors in the re-characterization of a discharge to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. T he Applicant should be aware though, that submission of these items alone , does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by th e NDRB on a case-by-case basis. After a careful review of the Applicant ’ s post-service documentation , to include his statement and four character reference letters, and his official service record, and taking into consideration his statements, the statements of his character witnesses, and the facts and circumstances unique to this case, the NDRB determined the quality of the Applicant’s service d id n ot meet the standard of acceptable conduct and performance for N aval personnel to warrant an Honorable characterization . Relief denied.

T he 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 , polysubstance abuse) . Furthermore, t he NDRB found the evidence of record did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offense s for which the discharge was awarded. Given the circumstances of the case, coupled with the nature of the misconduct and the standards and norms of the service, the NDRB determined that the punishment as awarded by the military trial judge was equitable and was consistent with the characterization of discharge given others in similar circumstances . Accordingly, t he reason for discharge is most appropriate. After a thorough review of the Applicant’s record, issues submitted, and post - service accomplishments, the NDRB determined that clemency was not warranted and that the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed.

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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