Upgrade.Vet

USMC | DRB | 2012_Marine | MD1200358

Original file (MD1200358.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20111029

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)       19970617 - 19980607     Active:

Period of Service Under Review:
Date of Current Enlistment: 19980608     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20021001      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 02 D a y ( s )
Education Level:        AFQT: 86
MOS: 3521
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

NJP:

- 19981217 :       Article (General A rticle, consume alcoholic beverages in a manner not authorized by North Carolina General Statue 18B, while under the legal drinking age of 21 years, in violation of law referred, at 2100, 19981204 in Jacksonville, NC)
         Awarded: Suspended: Vacated 19990401

- 19990401 :      Article (Absence without leave 0700, 19990320)
         Article (False official statement)
         Awarded: CCU 7days Suspended:

SCM:

- 19991123 :       Art icle (Absence without leave, 3 specifications )
         Specification 1 : 0630, 19990623 to 1200, 19990626, 3 days
         Specification 2 : 0630, 19990627 to 0630, 19990811, 55 days
         Specification 3: 0630, 19990814 to 1200, 19990914, 30 days
         Sentence : (19991123-19991217, 24 days)

SPCM:

- 20001023 :       Art icle (Wrongful use, possession, etc., of controlled substance, 3 specifications )
         Specification 1: Use of cocaine on or about 20000528
         Specification 2: Use of cocaine from about 20000903 to about 20000918
         Specification 3: Use of marijuana from about 20000903 to about 20000918
         Art icle (Absence without leave , 20000816-20000817 , 2 days )
         Sentence : CONF 100 days (20001023-20001211, 49 days)

CC:

Retention Warning Counseling :

- 19981217 :       For violation of North Carolina State Law and Marine Corps regulations on 19981204 by your underage consumption of alcoholic beverages in Jacksonville, NC.

- 19990316 :       For patter n of misconduct.

- 19990419 :       For pattern of misconduct involving alcohol, unauthorized absence , and making a false statement.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “ 19990623-19990626 (3), 19990627-19990811 (55), 19990814-19990914 (30), 19991123-19991217 (24), 20000816-20000817 (2), 20001023-20001211 (49) ”

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 P1900.16F), 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 seeks an upgrad e for veteran’s benefits .
2.       The Applicant contends his record of service outweighs his misconduct.
3.       The Applicant believes his post-service conduct is worthy of consideration.
4.       The Applicant contends he did not receive proper medical assistance and his bipolar disorder mitigates his misconduct .
5.       The Applicant contends his discharge was too severe for the offenses.

Decision

Date : 20 1 2 1220          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 governmental 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 record of service included three 6105 counseling warning s , two non-judicial punishment s (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Unauthorized a bsence , 1 specification ), Article 107 (False official statement), and Article 134 ( General A rticle) , o ne summary court-martial for violation of UCMJ Article 86 (Unauthorized absence, 3 specifications) , and one special court-martial for violation of UCMJ Article 86 (Unauthorized absence) and Article 112a (Wrongful use, possession, etc., of controlled substances) . Based on the Applicant’s conviction and sentence at a special court-martial, he was discharged with a Bad Conduct Discharge.

: (Nondecisional) The Applicant seeks an upgrade for veteran’s 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.

: (Decisional) ( ) . The Applicant contends he performed the duties of his military occupational specialty, followed orders, and scored high achievements on rifle qualification and other military tests , s uggesting his record of service outweighs his misconduct. During the Applicant’s 3 years and 11 months of service, he also received three retention warnings, two NJPs , one summary court-martial , and one special court-martial. He was punitively discharged from the Marine Corps and not separated upon expiration of enlistment. With the frequency and severity of the misconduct during his brief service, the NDRB found that clemency was not warranted. Relief denied.

: (Decisional) ( ) . The Applicant contends that since his discharge he has not been in legal trouble, has remained drug free, and has been a productive member of society. 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 and proof of college attendance , 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 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. T he NDRB determined clemency was not warranted based on post-service conduct. Relief denied.

: (Decisional) ( ) . The Applicant contends he did not receive proper medical assistance and his bipolar disorder mitigates his misconduct . When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline. However, the NDRB generally does not consider the circumstances surrounding the Applicant’s stated condition or diagnosis to be of sufficient nature to excuse the Applicant’s misconduct. The Board did not have the Applicant’s medical record and found no documentation in his service record indicating that he was ever denied the opportunity to receive medical treatment. Additionally, the Applicant provided no documentation concerning his diagnosis of bipolar disorder. After a complete review of the record of service and noting the Applicant’s frequent and severe misconduct, the NDRB determined that clemency was not warranted. Relief denied.

: (Decisional) ( ) . The Applicant contends his discharge was too severe for the offenses. The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Marine Corps . A preponderance of the evidence reviewed supports the conclusion that the Applicant committed multiple serious offense s , was given multiple opportunities to correct his behavior, and that a punitive discharge from the Naval Service was appropriate. 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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USMC | DRB | 2012_Marine | MD1200358

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