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USMC | DRB | 2011_Marine | MD1100358
Original file (MD1100358.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20101130
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)       20030528 - 20030629     Active:   20030630 - 20070201 HON

Period of Service Under Review:
Date of Current Enlistment: 20070202     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20090122      H ighest Rank:
Length of Service : Y ea r M on ths 2 1 D a ys
Education Level:        AFQT: 42
MOS: 3051/3531
Proficiency/Conduct M arks (# of occasions): 3.4 / 3.3    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle MM G W OTSM NDSM ICM SSDR (2)

Periods of CONF :

NJP: 1

- 20071107 :      Article 86 (Absence without leave, 3 specifications )
         Specification 1: Failed to report on 20071002
         Specification 2: Failed to report on 20071003
         Specification 3: Failed to report on 20071009
         Article 92 (Failure to obey order or regulation, 2 specifications )
         Specification 1: Failed to obey order to report on 20071002
         Specification 2: Wearing earrings and inappropriate civilian attire on 20071014
         Awarded: RIR FOP RESTR EPD Suspended: FOP

SCM: 1

- 20080312 :       Art icle 86 (Absence without leave, 4 specifications )
         Specification 1: UA, 20071217 - 20080104, 22 days)
         Specification 2: UA, 20080107 - 20080116, 10 days)
         Specification 3: UA, 20080128 - 20080129, 2 days)
         Specification 4: UA, 20080204 - 20080222, 19 days)
          Sentence : RIR FOP CONF 30 days (20080222 - 20080316, 24 days)

SPCM: 1

- 20080530 :       Art icle 86 (Absence without leave, 2 specifications )
         Specification 1: UA, 20080417 - 20080422, 6 days)
         Specification 2: UA, 20080422 - 20080427, 5 days)
          Art icle 112a (Wrongful use of controlled substance, marijuana)
         Sentence : FOP CONF 60 days (20080428 - 20080615, 49 days) BCD

CC: NONE

Retention Warning Counseling : 1

- 20070628:      For switching duty with another Marine without approval

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

 1.       The Applicant seeks an upgrade for employment and educational opportunities.
2.       The Applicant seeks an upgrade for service benefits.
 3.       The Applicant contends his discharge is inequitable , because it was based on two incidents in a 72 month period of service with no other major charges under the UCMJ.

Decision

Date: 20 1 2 0405            Location: Washington D.C .         R epresentation : NONE

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall .
Discussion

 In reviewing discharges, the Board 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 stated in a court-martial specification are presumed by the NDRB to be established facts. The Applicant ’ s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The Board completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure his discharge met the pertinent standards of equity. The Applicant’s record of service included one 6105 counseling warning , one nonjudicial punishment (NJP) for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, 3 specifications : Failed to report on 20071002, 20071003, and 20071009) and Article 92 (Failure to obey order or regulation, 2 specifications : Failed to obey order to report on 20071002 and Wearing earrings and inappropriate civilian attire on 20071014) , one summary court-martial for violation of the UCMJ: Article 86 (Absence without leave, 4 specifications : 22 days, 1 0 days, 2 days, and 19 days) , and one special court-martial for violations of the UCMJ: Article 86 (Absence without leave, 2 specifications : 6 days and 5 days) , and Article 112a (Wrongful use of controlled substance, marijuana). The Applicant did not require a pre-service waiver for illegal drug use prior to entering the Marine Corps , but acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs, in writing, on 28 May 2003. Based on the Article 112a violation, processing for administrative separation is mandatory. The Applicant was awarded a Bad Conduct Discharge at Special Court-Martial.

: (Nondecisional) The Applicant seeks an upgrade for employment and 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.

: (Nondecisional) The Applicant seeks an upgrade for 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.

: (Decisional) ( ) CLEMENCY NOT WARRANTED . The Applicant contends his discharge is inequitable , because it was based on two incidents in a 72 month period of service with no other major charges under the UCMJ. Per regulations, relevant and material facts as stated in a court-martial are presumed by the NDRB to be established facts. As such, matters of propriety related to the conduct of a punitive court-martial (e.g., Special Court-Martial) are addressed through the appellate review process by the Navy-Marine Corps Court of Criminal Appeals or through further petitioning for a review by the Court of Appeals of the Armed Forces. The Applicant’s appellate rights statement and certification of his acknowledgment of those rights, which detail this process, are appended to the verbatim record of trial by court-martial. In the Applicant’s case, during the current enlistment, in addition to a Special Court-Martial conviction, the Applicant also had a 6105 retention warning, NJP, and summary court-martial for a variety of UCMJ offenses, including a total of 53 days of being UA over four

occasions. The Special Court-Martial alone was for a violation of the Marine Corps’ zero-tolerance drug policy and for 11 more days of UA over two occasions. This pattern of repetitive and serious misconduct is neither “little trouble” nor is it just two incidents as the Applicant contends. This repetitive misconduct, particularly for a Marine on his second enlistment, is egregious and warranted the NJP, summary court-martial, and special court-martial. After a thorough review of the record, the NDRB determined that no clemency is warranted. Relief denied.
Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall 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 for additional information.


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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