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USMC | DRB | 2011_Marine | MD1100432

Original file (MD1100432.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20101213

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)       19980209 - 19980407     Active:

Period of Service Under Review:
Date of Current Enlistment: 19980408     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20020930      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 23 D a y ( s )
Education Level:        AFQT: 78
MOS: 7051
Proficiency/Conduct M arks (# of occasions): /          Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle LoA

CONF : 20010703-20010813 (pre-tr i al confinement, 41 days)

NJP:

- 1999 0902 :      Article (Failing to obey a lawful order by wrongfully giving a false name, stating that he lost his ID card, and only giving seven to eight numbers of his social security number)
         Awarded: Suspended: vacated FOP 20000111

SCM:     CC:

SPCM:

- 20020109 :      Article (UA on or about 20010606, without authority, absent himself from his unit, and did remain so until on or about 20010607 , 1 day )
         Article ( Wrongful use of marijuana, 2 specifications )
         Specification 1: wrongful use of marijuana on or about 20010517-20010531
         Specification 2: wrongful use of marijuana on or about 20010526-20010608
         Sentence : (42 days)

Retention Warning Counseling:

- 19990824 :      For having drug paraphernalia in your BEQ room (box of zigzags)

- 19990902 :      For disobeying a lawful order

- 20010201 :       For disobeying a lawful order, specifically operating a p ersonally owned vehicle with passenger not wearing their seat belt

- 20010227 :      For being UA for the rifle range on 20010223

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:                  Other Documentation:
                  Additional Statements:
         From Applicant:          From/To Representation:          From/To Congress member:

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 contends he was not properly informed of the ramifications of his request to be separated from the Marine Corps.
2 .       The Applicant contends the Bad Conduct Discharge was inequitable.
3.       The Applicant states that he is now a successful and upstanding citizen .

Decision

Date: 20 1 2 0 328          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 Board presumes regularity in the conduct of governmental 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 stated in a court-martial specification are presumed by the NDRB to be established facts. The Applicant’s record of service included four 6105 counseling warning s and one non-judicial punishment for violation of the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey order or regulation, 1 specification) . It also included one special court-martial for violations of the UCMJ: Article 86 (Unauthorized Absence, 1 specification) and Article 112a (Wrongful use of controlled substance, 2 specifications). The Applicant had a pre-service drug waiver for using marijuana two times prior to entering the Marine Corps acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 4 February 1998. Based on the Applicant’s conviction and sentence at a special court-martial, he received a Bad Conduct Discharge, reduction in rank, confinement, and forfeiture of pay.

: (Decisional) ( ) . The Applicant contends he was not properly informed of the ramifications of his request to be separated from the Marine Corps. The Applicant may have requested to be separated from the Marine Corps, but it was not his decision to make. The Marine Corps decided to take the Applicant to a special court-martial for violations of the UCMJ. The Applicant was afforded counsel and was advised of all of his rights. After conviction at court-martial, t he U.S. Navy-Marine Corps Criminal Court of Appeals, after careful consideration of the record, affirmed the findings and sentence. This affirmation supports the NDRB’s presumption of regularity in that the Applicant’s legal counsel properly advised him of his rights and possible outcomes , and that all other legal aspects of this case were proper. The Board determined that clemency based the Applicant’s claim of impropriety is not warranted. Relief denied.

: (Decisional) ( ) . The Applicant contends the Bad Conduct Discharge was inequitable. In reviewing discharges adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency. Certain serious offenses warrant separation from the Naval S ervices to maintain proper order and discipline. Violation of Article 112a of the UCMJ is one such offense requiring mandatory processing for administrative separation regardless of performance, grade, or time in service. Violation of Article 112a 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 special or general court-martial. In this case, the Applicant’s misconduct was adjudicated at a special-court martial during which a military judged deemed a punitive discharge appropriate . The Applicant pled guilty and was found guilty of multiple specification s of violating Article 112a of the UCMJ. The NDRB discerned no impropriety in the discharge process and determined that the multiple uses of a controlled substance did not warrant clemency. Relief denied.

: (Decisional) ( ) . The Applicant states that he is now a successful and upstanding citizen. The NDRB is authorized to consider post-service factors in the re-characterization of a discharge. However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question. The Applicant did not submit any post-service documentation along with the DD Form 293 for the Board to evaluate his post-service character and conduct. His statement alone was not sufficient. He could have submitted documentation as specified in the Post-Service Conduct paragraph in the Addendum , however, c ompletion 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. 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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USMC | DRB | 2011_Marine | MD1100432

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