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USMC | DRB | 2012_Marine | MD1200180
Original file (MD1200180.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20111025
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)       19920407 - 19920824     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19920825     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19961218      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 24 D a y ( s )
Education Level:        AFQT: 43
MOS: 3052
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :
Time Lost per DD 214: 19951220-19960213, 54 days; 19951216-19951217, 2 days

NJP:

- 19941209 :       Article (False official statements)
         Article (Larceny and wrongful appropriation )
         Awarded: Suspended:

SCM:     CC:

SPCM:

- 19960722 :       Art icle (Absence without leave , 3 s pecifications )
         Specification 1: 19950927 without authority absent himself from his organization until on or about 1995 10 02 , 6 days
         Specification 2 : 19951011 without authority absent himself from his organization until on or about 199511 10 , 31 days
         Specification 3 : 19951111 without authority absent himself from his organiza tion until on or about 19951214, 34 days
         Art icle (Wrongful use possession, etc, of controlled substance, marijuana)
         Sentence : 75 days

CIVIL ARREST:

- 19950808 :       Charges: N ot Found in Record



Retention Warning Counseling :

- 19951219 :       For failure to be at appointed place of duty from 0530 , 1995 1 111 to 1300, 19951213

- 19951219 :       For involvement with civilian authorities

- 19951219 :       For failure to be at appointed place of duty from 0730, 19950927-0730, 19951002

- 19951219 :       For drug usage confirmed by urinalysis testing on 19951002. Ref NAVDRUGLAB Jacksonville, FL message 240609z Oct 95

- 19951219 :       For failure to be at appointed place of duty from 0730, 19951011-0730, 19951110

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 .

B. 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 requests clemency to better his life when released from prison.
2 .       The Applicant contends his discharge was unfair because of the hostile attitude from his superiors at the I-I staff.
 3.       The Applicant contends if the Marines had given him the help and guidance he needed, he would not be where he is today.
 4.       The Applicant contends his post-service conduct is worthy of clemency.
Decision

 Date : 20 1 2 1126            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 discharg e if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of g overnment al 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. T he Board did complete a thorough review of the circumstances that led to his discharge and the discharge process to determine if clemency was warranted. The Applicant’s record of service included 6105 counseling warnings, for o f the Uniform Code of Military Justice (UCMJ): Article 107 (False official statements) and Article 121 (Larceny and wrongful appropriation ) , and Special Court-Martial for of the UCMJ: Article 86 (Unauthorized ab sences, 3 specifications: 19950927 without authority absent himself from his organization until on or about 19951002, 6 days; 19951011 without authority absent himself from his organization until on or about 19951110, 31 days; and 19951111 without authority absent himself from his organization until on or about 19951214, 34 days) and Art icle (Wrongful use possession, etc, of controlled substance, marijuana). The Applicant also had a pre-service drug waiver for using marijuana p rior to entering the Marine Corps, and acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 2 April 1992. Based on the Applicant’s conviction and sentence at a S pecial C ourt- M artial, he was discharged with a Bad Conduc t Discharge .

: (Nondecisional) The Applicant requests clemency to better his life when released from prison. The NDRB acknowledges the Applicant’s desire to provide a better life for himself , however, this issue does not serve to provide a foundation upon which the Board can grant relief. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing a former service member’s ability to pr ovide a better life for himself .

Issue 2: (Decisional) (Clemency) RELIEF NOT WARRANTED. The Applicant contends his discharge was unfair because of the hostile attitude from his superiors at the I-I staff. The Applicant provided no documentary evidence to show his superiors at the I-I staff were hostile to him. What is in the record are five retention warnings, an NJP for false official statements and larceny, and a conviction at a Special Court-Martial for three specifications of being UA, totaling 71 days, and one specification for the wrongful use of marijuana. In accordance with Secretary of the Navy Instruction 5420.174D of 22 December 2004, relevant and material facts as stated in a court-martial are presumed by the NDRB to be established facts. As such, matters of propriety related to the conduct of a punitive court-martial (e.g., Special Court-Martial) are addressed through the appellate review process by the Navy-Marine Corps Court of Criminal Appeals or through further petitioning for a review by the Court o f Appeals of the Armed Forces. After a complete review of the Applicant’s records and his statement, the NDRB found no evidence of a hostile attitude or improper or unfair behavior from his superiors and determined clemency was not warranted. Clemency denied.




Issue 3: (Decisional) (Clemency) RELIEF NOT WARRANTED. The Applicant contends if the Marines had given him the help and guidance he needed, he would not be where he is today. The NDRB found this contention to be without merit. The NDRB found that the Marine Corps gave the Applicant multiple opportunities to correct his poor behavior. He was retained in service after being found guilty at NJP in December 1994 of committing two serious offenses (false official statements and larceny) that warranted separation. He was then counseled repeatedly in December 1995 concerning his poor behavior, involvement with civilian authorities, illegal drug usage, and inability to be at his assigned places of duty. He was eventually found guilty at a Special Court-Martial and discharged with a Bad Conduct discharge. The NDRB found no evidence that the Applicant was not responsible for his behavior or should not be held accountable for his misconduct. There are multiple avenues of legal recourse available to Marine undergoing stress and substance abuse issues , but it is the responsibility of the Marine to take advantage of them. Ultimately, the Applicant is responsible for his behavior and conduct. Clemency denied.

Issue 4: (Decisional) (Clemency) RELIEF NOT WARRANTED. The Applicant contends his post-service conduct is worthy of clemency. He submitted a personal statement, three character reference letters, and two requests for reference letters to prison chaplains. 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 could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum , however, 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. To warrant an upgrade, the Applicant’s post-service efforts need to be more encompassing. T he Board determined that the documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration. The characterization of service received was appropriate considering the length of service and UCMJ violations. Clemency 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 . Since 15 years have elapsed since the date of his discharge, the Applicant is not eligible for a personal appearance hearing. The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm.



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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