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USMC | DRB | 2011_Marine | MD1100573
Original file (MD1100573.rtf) Auto-classification: Denied
ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20101222
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)       20030617 - 20040314     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20040315     Age at Enlistment: 17 (With parental Consent)
Period of E nlistment : 5 Years Months
Date of Discharge: 20060712      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 28 D a y ( s )
Education Level:        AFQT: 88
MOS: 6132
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle , , , , , , , LoA

NJP:

- 20050121 :      Article (Failure to obey order or regulation, 2 specifications )
         Specification 1: Did disobey a lawful order by operati ng a motor vehicle without a driver ’ s license
         Specification 2: Did disobey a lawful order given by a SSgt to not drive until obtaining a valid driver ’ s license
         Awarded: , , Suspended:

SCM:     CC:

SPCM:

- 20050519 :       Art icle ( Wrongful use, possession, etc., of a controlled substance , 3 s pecifications )
         Specification 1: Wrongful use of MDMA ( E cstasy) on diverse occasions, from 01 Jan to 07 Feb 2005
         Specification 2: Wrongfully use Methamphetamine on or about 20 Jan 2005
         Specification 3: Wrongfully use Cocaine on or about 18 Mar 2005
         Sentence Adjudged : , , 120 days [ 20050405 - 20050518 ( 4 5 days pre-trial confinement) and 20050519 - 20050711 ( 54 days post-trial ) ]
         Convening Authority Actions : The sentence is approved, and except for the Bad Conduct Di scharge, is ordered executed.

Retention Warning Counseling :

- 20050210 :       For your violation of article 92 (2) counts for operating a motor vehicle without a valid drivers license




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 clemency in the characterization of his service at discharge, contending that his post-service drug treatment and educational efforts are worthy of consideration.

Decision

 Date: 20 1 2 0419           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 provided two items related to post-service activities for the NDRB ’s consideration, but provided no documentation to rebut the Government’s presumption of regularity . The Applicant’s service record indicates he entered military service at age 1 7 (with parental consent) on a 5 -year enlistment contract under a guarantee of Aviation Mechanic Option as a contract E-1/Private. The Applicant’s enlistment record further reflects entry into the Marine Corps with a waiver to the Marine Corps enlistment and induction standards as a result of his p re-service illegal drug use ( marijuana ) . As a function of the enlistment waiver process, the Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning the Illegal Use of Drugs - in writing .

The Applicant’s service record documents a nonjudicial punishment (NJP) f or violation s of the Uniform Code of Military Justice (UCMJ): specifically, violation of Article 92 (failure to obey a lawful order or regulation - 2 specifications). As a result of this misconduct, the Applicant received a formal retention-counseling warning (20050210) related to his failure to obey orders or regulations and was advised that further misconduct could result in administrative separation or punitive action . On 19 May 2005, the Applicant was subject to trial by Special Court Martial (SPCM) for violation of Article 112(a) (Wrongful sue possession, etc., of a controlled substance [ecstasy, methamphetamines, cocaine] during the period 01 Jan to 18 March 2005) . A qualified legal defense counsel represented the Applicant throughout the trial by Special Court-Martial process. T he Applicant exercised his right to request trial by military judge alone and pled guilty to the charges, as specified . 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 1 2 0 days. The Applicant served 99 days of the sentence before being released from confinement due to good time accrued with time served. The case was submitted for review with out assignment 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 19 October 2005 . Subsequently, the Navy Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed and the Applicant was discharged from the Marine Corps with a Bad Conduct Discharge.

Issue 1: ( Decisional ) (Clemency) CLEMENCY NOT WARRANTED. The Applicant seeks clemency in the characterization of his service at discharge, contending that his post-service drug treatment and educational efforts are worthy of consideration. Accordingly, t he NDRB conducted a thorough review of the Applicant’s discharge under the pertinent standards of equity to determine if any factors in this par ticular case merited clemency. 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; matters of propriety are decided and upheld through the appellant’s right to legal review process - t he Navy and Marine Corps Court of Criminal Appeals and the Court of Appeals of the Armed Forces. As such, mat t ers of propriety are not within the authority of the NDRB in relation to punishment as adjudg ed in a punitive trial by court- martial. The Applicant seeks consideration for an upgrade in his characterization of service at discharge , contending that his post-service efforts are worthy of consideration. The Applicant submit ted documentation attesting to his completion of a substance abuse treatment program and having attained an Associates Degree from an accredited institution .

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 deliberate and repetitive misconduct. Despite a service member’s prior record of service, certain serious offenses warrant separation from the Naval Service in order to maintain good order , safety, and discipline of the force . Violation of Article 112(a) is one such offense , requiring mandatory processing for administrative separation - regardless of grade or time in service. This 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. Given the Applicant ’ s misconduct of record, coupled with the need to ensure the good order , safety, and discipline in the unit, the command opted to pursue adjudication and discharge through punitive court- martial instead of the more lenient administrative separation process. The Applicant elected trial before a military judge alone and ple d g uilty to the charges as specified . The Military Judge found the Applicant guilty of the offenses, as charged, based on the Applicant’s testimony and awarded him the Bad Conduct Discharge , reduction in grade to Private/E-1 , and confinement for 1 2 0 days.

The Applicant contends his post-service conduct warrants consideration for an upgrade to General (Under Honorable Conditions). The NDRB considers 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. Besides the Applicant’s statement on the DD Form 293, he provided a copy of his college transcripts indicating that he had attained a n Associates Degree from an accredited institution and that he had successfully completed a substance abuse treatment program . The Applicant should be aware submission of these items alone does not guarantee an upgrade from an unfavorable discharge, as each discharge is reviewed by the NDRB on a case-by-case basis. The NDRB determined the Applicant’s post-service documentary evidence, though positive, was not enough to establish a basis for relief. 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 repetitive illegal drug use and a failure to obey orders or regulation. Clemency 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 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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