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Decision Text

USMC | DRB | 2011_Marine | MD1101513
Original file (MD1101513.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110601
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)       20050709 - 20050918     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20050919     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080826      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 03 D a y ( s )
Education Level:        AFQT: 54
MOS: 0151
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle LoA

NJP:

- 20070107:      Article (Absence without leave, 2 specifications)
         Specification 1: 0730-1030, 20061227
         Specification 2: 0730-1030, 20061228
         Awarded: Suspended:

- 20070329 :      Article (General A rticle, wrongfully have sexual intercourse with a woman not his wife)
         Awarded: Suspended:

- 20071107:      Article 112a (Wrongful use, possession, etc., of controlled substance, 3 specifications )
         Specification 1: Use of marijuana on or about 20070731
         Specification 2: Use of marijuana on or about 20070803
         Specification 3: Possession of marijuana on or about 20070803
         Awarded: RIR Suspended:

SCM:     CC:

SPCM:

- 20080117 :      Article (Wrongful use, possession, etc., of controlled substance between on or about 20071012 and 20071212)
         Sentence: CONF 6 months (Pretrial confinement 20071213-20080116, 34 days)
         CA: The sentence is approved and, except for the part of the sentence extending to a bad-conduct discharge, the sentence is executed; but was required by the pretrial agreement, the execution of that part of the sentence adjudging confinement in excess of time served, will be suspended for the period of confinement served plus 6 months thereafter, at which time, unless sooner vacated, the suspended portion will be remitted without further action.

Retention Warning Counseling:

- 20070403: For failure to properly maintain your body composition standards as required by MCO P6100.12.

- 20070111 :      For you were UA from your appointed place of duty, your work place on 27 December, and 28 Deceber.

- 20070215 :       For failure to meet physical standards, and failure of physical fitness test on 20061206.

- 20070403 :      For on , or about , 20060706 you wrongfully had sexual intercourse with a married woman not your wife and during Janu a ry 2007 , you refused L evel 3 treatment for alcoholism.

- 20070530:      For Article 86, u nauthorized absence, in that you showed up late for work due to your travel not listed in your leave plan placing you in a different state requiring you to take transportation that was not planned for causing you to arrive almost a n hour late.

- 20071126 :      For your Battalion level NJP resulting from violation of the UCMJ, Article 112a x3 possession and use of a controlled substance (marijuana) in that you had a positive urinalysis, admitted to use, and had in your possession marijuana.

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 wants his discharge upgraded so he can get a better job and support his family.
 2 .       The Applicant believes his post-service conduct warrants consideration for upgrading his discharge.

Decision

Date: 20 1 2 0809            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 g overnment al a ffairs 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 six 6105 counseling warnings and three non-judicial punishments for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Unauthorized a bsence, 2 specifications), Article 112a (Wrongful use, possession, etc. of a controlled substance, 3 specifications), and Article 134 (General Article , W rongfully have sexual intercourse with a woman not his wife). His record of service also included one S pecial C ourt- M artial for violation of the UCMJ: Article 112a ( Wrongful use, possession, etc. of a controlled substance, 1 specification). Based on the Applicant’s conviction and sentence at a S pecial C ourt- M artial, he was confined , forfeited pay, and separated with a Bad Conduct Discharge.

: (Decisional) ( ) . The Applicant wants his discharge upgraded so he can get a better job and support his family. Although the NDRB acknowledges the Applicant’s desire for better employment, the desire for a better life, by itself, is not sufficient reason for the Board to grant clemency. Relief denied.
: (Decisional) ( ) . The Applicant believes his post-service conduct, as evidenced by his employment, warrants consideration for upgrading his discharge. 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. The Applicant provided a letter from his employer confirming his employment status. To warrant an upgrade, the Applicant’s post-service efforts need to be more encompassing. The Applicant could have also provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum with the understanding that completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration . Clemency based on this issue alone is not warranted. 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), 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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