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USMC | DRB | 2011_Marine | MD1100546
Original file (MD1100546.rtf) Auto-classification: Denied
ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20101229
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)       19910809 - 19920706     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19920707     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19960201      H ighest Rank:
Length of Service : Y ea rs M on ths 22 D a ys
Education Level:        AFQT: 72
MOS: 2311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle EX (3) , NDSM , MM

Periods of UA / CONF :

NJP:
        
- 19940803 :       Article 112a ( Wrongful use , possession, etc., of a controlled substance; wrongful use of amphetamine /methamphetamine on 19940707)
         Awarded: RIR FOP RESTR EPD      Suspended: NONE

SCM: NONE        CC: NONE                  Retention Warning Counseling : NONE

SPCM: 1

- 19941206 :       Art icle 112a (Wrong ful use, possession, etc., of controlled substance, 2 specifications )
         Specification 1: Wrongful use of a mphetamine/methamphetamine ( 19940930 )
         Specification 2: Wrongful possession of a mphetamine/methamphetamine ( 19941021 )
         Sentence A d judged : BCD, RIR , FOP , CONF 60 days ( Pre-trial 19941022 - 19941205, 44 days)
         Convening Authority Action : The sentence is approved and, except for the Bad Conduct Discharge, is ordered executed. In accordance with the pre-trial agreement, all confinement in excess of 46 days is suspended.

Administrative Corrections to the Applicant’s DD 214

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

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 P1900.16E), effective 18 August 1995 until 31 August 2001.

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 receive benefits from the D epartment of Veterans Affairs.

Issue 2 : The Applicant seeks clemency, contend ing that he regrets his drug use but his service otherwise was outstanding.
Decision

Date: 20 1 2 0419           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 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 1 7 (with parental consent) on a four-year enlistment contract under a n Explosive Ordnance Disposal/Ammunition Technician training guarantee. The record further reflects this entry into military service with waivers to enlistment and induction standards for pre-service illegal drug use ( marijuana ) and underage alcohol possession . During the enlistment process, the Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning the Illegal Use of Drugs - in writing - on 06 August 199 1 . The highest rank achieved by the Applicant during his enlistment was E- 3 / Lance Corporal. The record of service included one nonjudicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ): Article 112a (Wrongful use of controlled substance, amphetamine/methamphetamine, 19940707) . The Applicant was notified that he was being recommended for administrative separation from the service for Misconduct (Drug Abuse). While pending review of his administrative discharge recommendation, the Applicant continued to engage in illegal drug use . As a result of the continued misconduct, t he Applicant was subject to trial by Special Court-Martial on 06 December 1 9 94 . The Applicant was court - martial ed for violation of Article 112 ( a ) - Wrongful use, possession, etc. , o f a controlled substance, 2 specifications ( Specification 1: Wrongful use of amphetamine/methamphetamine on 19940930 and Specification 2: Wrongful possession of amphetamine/methamphetamine on 19941021 ). A qualified legal defense counsel represented the Applicant throughout the trial by Special Court-Martial process . 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 6 0 days. The Applicant was tried in accordance with a signed Pre-Trial Agreement (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 46 days confinement). The case was submitted for review to the U.S. Navy-Marine Corps Court of Criminal Appeals with two assignment s of error ; the case was reviewed and the findings and sentence were affirmed on 11 October 1995 . Subsequently, the Navy Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed. The Applicant’s final discharge was effected on 01 February 1996 .

Issue 1: ( Nondecisional ) The Applicant seeks an upgrade to his discharge characterization of service in order to achieve eligibility for VA 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 specific foundation upon wh ich the NDRB can grant relief.


Issue 2 ( Decisional ) (Clemency) CLEMENCY NOT WARRANTED. The Applicant seeks clemency, contend ing that he regrets his drug use but that his service otherwise was outstanding. 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 amphetamines/ methamphetamines in direct violation of the UCMJ and the Marine Corps Policy on i llegal drug use, the Applicant was processed for administrative separation. While pending separation, he again tested positive for an illegal controlled substance. Given the continued, willful disregard for policy and good order and discipline following nonjudicial punishment , the command chose 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 . 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 6 0 days.

At trial, t he Applicant contend ed that 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. There is no evidence in the record, nor did the Applicant provide any documentation, at trial or to the NDRB, 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 Applicant enlisted with a waiver from the Recruiting District Commanding Officer for pre-service drug use ( admitted use of marijuana , in excess of twelve times) . T he Applicant was fully advised of t he Marine Corps Policy Regarding 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 controlled substances was both deliberate and wrongful and was not mitigated by his prior positive service. Additionally, t he 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.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, the verbatim 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 . As more than 15 years ha ve passed since discharge, the Applicant has exhausted his opportunities to seek redress through the NDRB. Accordingly, the Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review. 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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