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USMC | DRB | 2011_Marine | MD1100713
Original file (MD1100713.rtf) Auto-classification: Denied
ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110124
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)       19920827 - 19930720     Active:   19930721 - 19970309 HON
                                    USMC 19970310 - 20010228 HON
 Period of Service Under Review:
Date of Current Enlistment: 20010301     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20060626      H ighest Rank:
Length of Service : Y ea rs M on ths 26 D a ys
Education Level:        AFQT: 59
MOS: 6257
Proficiency/Conduct M arks (# of occasions): N/A          Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle MM , Pistol SS , GCM (3) , GWOTSM , KDSM , SSDR (5) , NDSM, LOA (2) , COC (2) , MM (2)

NJP: NONE        SCM: NONE        CC: NONE Retention Warning Counseling : NFIR
SPCM: 1
- 20041220 :       Art icle 112 ( a ) (Wrongful use of controlled substance, marijuana)
         Sentence Adjudged : BCD, CONF 15 days (20041221 - 20041231 (11 days))
         Convening Authority Action : The sentence is approved and, except for the Bad Conduct Discharge, is ordered executed.

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

 1.       The Applicant contends his discharge is an improper depiction of his overall faithful and outstanding active duty service.
2.       The Applicant contends his misconduct was an isolated incident in what was an otherwise outstanding military career.
3.       The Applicant believes his post-service conduct is worthy of consideration.

Decision

 Date: 20 1 2 0426            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, 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’s service record indicates he entered military service at age 17 (with parental consent) on a 5-year enlistment contract under an Aviation Maintenance option, ultimately receiving training as a Fixed Wing Aircraft Airframe Mechanic with the Marine Corps. The Applicant’s enlistment record further reflects his entry into military service without any waivers to enlistment and induction standards; however, as a function of enlistment, he a cknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs - in writing - on 26 August 1992 as a function of his enlistment contract. The highest rank achieved by the Applicant during his enlistment tenure was E-6/Staff Sergeant . The Applicant was serving on his third enlistment with the Marine Corps, having completed honorably, two 4-year enlistment contracts, which ended in February 2001. The Applicant entered his current enlistment contract on 01 Mar 2001 for 4 years of service.

The Applicant’s record of service during the current enlistment period does not document receipt of any retention-counseling warnings or nonjudicial punishment s for violation s o f the Uniform Code of Military Justice (UCMJ). However, the Applicant’s record documents a punitive Special Court - Martial for violation of Article 112(a) of the UCMJ: 1 specification of wrongful use, possession, etc of a controlled substance - wrongful use of marijuana on or about 28 May 2004 . A qualified legal defense counsel represented the Applicant throughout the trial by Special Court-Martial process. The Applicant chose to exercise his right to trial by Military Judge alone and pled guilty to the single specification of wrongful use of a controlled substance. Given the facts of the case, the trial judge awarded the Applicant a Bad Conduct Discharge and confinement for a period of 15 days. Following the trial, the Convening Authority ordered the sentence executed. The Applicant served his adjudged time in confinement and was released on appellate leave pending review and approval of the Bad Conduct Discharge. The case was submitted for review without any assignment of error to the U.S. Navy - Marine Corps Court of Criminal Appeals; it was reviewed and the findings of the S pecial C ourt -M artial were affirmed on 2 0 July 2005 . T he Navy Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed , and the Applicant was discharged with a Bad Conduct Discharge.

Besides his DD Form 293, the Applicant provided no other documentation in support of his petition for a change to his discharge.

Issues 1 and 2: (Decisional) ( Clemency ) CLEMENCY WARRANTED. The Applicant seeks clemency in the form of an upgrade in the characterization of his service at discharge to General (Under Honorable Conditions), contending that his discharge was an improper depiction of his overall faithful and outstanding active duty service and that it was an isolated incident in what was otherwise 12 years of faithful service. Despite a service member’s prior record of service, certain serious offenses, though isolated, warrant separation from the Naval Service in order to maintain good order and discipline. Violation of Article 112(a) 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 discharge or, at a maximum, a punitive discharge with the possibility of confinement, if adjudicated and awarded as part of a sentence by a S pecial or G eneral C ourt- M artial. The Applicant completed his first two enlistment period s with an Honorable characterization of his service for th ose period s of service ; however, each period of enlistment is an independent obligation and characterization of service is determined for that specific period. As such, the Applicant’s Form DD Form 214 (Block 18) reflects continuous honorable service from 19930721 to 20010228 (the period of the first two enlistments). At the time of the misconduct, the Applicant was on his third enlistment and was a Staff Non-commissioned Officer in the Marine Corps, responsible for the leadership of subordinates and to uphold and enforc e regulations and the standards of the service. Violation of the Marine Corps Drug P olicy - acknowledged by witnessed signature in writing - upon enlistment, a policy to which he was responsible for enforcing among his subordinates, left little room for the command to address other than through punitive action in order to maintain the good order and discipline of the command and the Corps . The Applicant’s personal statement on his DD Form 293 to the NDRB recognizes this . T he Applicant was referred to trial by Special Court-Martial f or the illegal use of a controlled substance - marijuana . The Military Judge found the Applicant guilty of the offense, as charged, and awarded him the Bad Conduct Discharge and confinement for 15 days. The NDRB reviewed all of the available records, supporting documents, facts, elements of discharge, and circumstances unique to this case. Given the unique circumstances of th is case, coupled with the nature of the misconduct and the standards and norms of the service, the NDRB determined that the punishment , though proper at the time , was no t consistent with the characterization of discharge given others in similar circumstances. As such, the NDRB determined that some form of clemency wa s warranted.

Issue 3: (Decisional) ( Clemency ) CLEMENCY NOT WARRANTED. The Applicant contends his post-service conduct warrants consideration by the NDRB for an upgrade to General (Under Honorable Conditions) . 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. Besides the Applicant’s statement on the DD Form 293, he failed to provide any documentary evidence on his behalf for post-service consideration. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum with the recognition that completion of these items alone does not guarantee an upgrade from an unfavorable discharge. Each discharge is reviewed by the NDRB on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration. Without post-service documentary evidence, the NDRB presumes regularity and relies o n the documented record of service. Clemency based on this issue is not warranted.

Characterization of service at discharge is recognition of the quality of a Marine’s performance and conduct; it cannot be underestimated, as characterization of service serves as a goal for each Marine or Sailor and as a meaningful endorsement of their service to potential employers. Most Marines serve honorably; in fairness to them, commanders and separation authorities are tasked to ensure that service members receive no higher characterization than is due. A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. However, an Under Other Than Honorable Conditions discharge is warranted when members engage in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service. After a careful review of this particular case and the official service record, and taking into consideration his statement and the facts and circumstances unique to this case, the NDRB determined the quality of the Applicant’s service did not meet the standard of acceptable conduct and performance for N aval personnel to warrant an Honorable or General (Under Honorable Conditions) characterization. T he NDRB determined that the Applicant’s misconduct of record was conduct involving one or more acts or omission s that did constitute a significant departure from the conduct expected of members of the Naval Service (in-service drug usage) but that the Bad Conduct Discharge, though proper at the time, was excessively harsh . By a vote of 4 - 1 , the NDRB determined that some form of clemency was warranted; as such, the characterization of service shall change to Under Other Than Honorable Conditions. C lemency granted , partial relief provided .

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 found that some form of clemency was warranted. Therefore, the awarded characterization of service shall UNDER OTHER THAN HONORABLE CONDITIONS, but 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 more 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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