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USMC | DRB | 2011_Marine | MD1100629
Original file (MD1100629.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110105
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)       19971030 - 19971104     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19971105     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20010430      H ighest Rank:
Length of Service : Y ea rs M on ths 18 D a ys
Education Level:        AFQT: 43
MOS: 3531
Proficiency/Conduct M arks (# of occasions): 4.4/3.9      Fitness R eports:

A wards and Decorations ( per DD 214):      Rifle EX

Period of CONF : Pre-Trial CONF 19990513 - 19990620 (3 9 days )

NJP: 1
- 19990318 :       Article 112a (Wrongful use, possession, etc. of a controlled substance, Marijuana , o/o 19990308 )
         Awarded: RIR (to E-2) FOP RESTR EPD Suspended:

SCM: NONE         CC: NONE                  Retention Warning Counseling : NONE

SPCM: 1
- 19990621 :       Art icle 90 (Assaulting or willfully disobeying a superior commissioned officer, consuming alcohol while on a restricted status , 19990513 )
         Art icle 111 (Drunken or reckless operation of a vehicle, 19990513 )
         Article 112a (Wrongful use, possession, etc. of a controlled substance, Marijuana)
         Article 134 (General Article, breaking restriction , 19990513 )
         Sentence : CONF ( 120 days ) BCD
         [Appellate Review: reduced CONF to 72 days (Pierce credit for NJP Art 112a offense from 19990318]
Administrative Corrections to the Applicant’s DD 214

The NDRB noted an administrative error on the original DD Form 214:

          Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “ RIFLE EXPERT BADGE , LETTER OF COMMENDATION, MERITORIOUS MAST, LETTER OF APPRECIATION ”
        
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 502, Propriety and Para 503, Equity .



DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

 1.       Applicant seeks a discharge upgrade to increase employment opportunities and to obtain v eterans b enefits.

Decision

 Date: 20 1 2 04 19            Location: Washington D.C .         R epresentation : NONE

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 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 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. T he Board did complete a thorough review of the circumstances that led to discharge and the punitive discharge process to determine whether his discharge merited clemency . The Applicant’s record of service included one nonjudicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ ): Article 112a (Wrongful use, possession, etc. of a controlled substance, m arijuana o/o 8 Mar 1999, as evidenced by NAVDRUGLAB msg 161554Z Mar 99 ) and one S pecial C ourt- M artial for violations of the UCMJ: A rticle 90 (Willfully disobeying a superior commissioned of ficer, consuming alcohol while i n a restricted status , 13 May 1999 ) , Article 111 (Drunken or reckless operation of a vehicle, a sport utility vehicle, in which he struck a curb and the vehicle landed on its left side, aboard MCAS Miramar on 13 May 1999) , and Article 112a (Wrongful use, possession, etc. of a controlled substance, m arijuana ), and Article 134 (General Article, breaking restriction, aboard MCAS Miramar, 13 May 1999) . T h e drug offense was subsequently reviewed during Appellate Review and determined to be a duplicate charge from the 18 Mar 1999 NJP , therefore , the Applicant’s sentence was reduced to 72 days confinement from the original 120 days awarded by the military judge. However, a pre-trial agreement suspended any confinement in excess of 45 days for a period of six months . T he Applicant ’s record also revealed he had a pre-service drug waiver for using marijuana ten times and police involvement (criminal trespass, Oct 1993; retail theft, 1993; motor vehicle anti-theft, Oct 1993; leaving the scene of an accident, 1992, nolle pros; and failure to give aid, 1992, nolle pros) prior to entering the Marine Corps, and acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 24 Sep 1997. Based on the offenses committed by the Applicant, he was placed on pre-trial restriction (13 May-20 Jun 1999) and referred to trial by court- martial. The Applicant was tried at S pecial C ourt -M artial on 21 Jun 1999. He pled and was found guilty of the offenses in which he was charged and awarded 120 days confinement and a Bad Conduct Discharge by the military judge. Upon completion and affirmation of appellate review, the Applicant was automatically reduced to E-1 (Private) and separated from the Marine Corps with a Bad Conduct Discharge on 30 Apr 2001.

: (Nondecisional) The Applicant seeks a discharge upgrade to increase employment opportunities and to obtain veterans 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. Additionally, t he NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as r egulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.
Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries and the punitive 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), 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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