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USMC | DRB | 2012_Marine | MD1201773
Original file (MD1201773.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20120815
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)       20051201 - 20060312     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20060313     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20091028      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 16 D a y ( s )
Education Level:        AFQT: 49
MOS: 7041
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle LoA (2)

Periods of UA / CONF :

NJP:     CC:

SCM:

- 20080826 :      Article (Absence without leave , 2 specifications )
         Article ( Wrongful use, possession, etc. of controlled substances)
         Specification 1: Wrongful use of cocaine
         Awarded: 20 days (20080814-20080901, 19 days)

SPCM:

- 20081208 :       Art icle (Absence without leave , 20080916-20080925, 10 days)
         Art icle ( Wrongful use, possession, etc. of controlled substances , 2 specifications )
         Specification 1: Wrongful use of marijuana
         Specification 2: Wrongful use of marijuana
         Sentence : 120 days (20080925-20081207, 74 days)

Retention Warning Counseling :

- 20070416 :       For the following deficiencies: Y ou have demonstrated a trend of failing to maintain personal financial responsibility. On or about the dates of 20070401 and 20070415, credit card account-issued checks were cashed at MCCS check cashing services and were returned unpaid. Deliberately attempting to withdraw funds on a closed account otherwise known not to have sufficient funds is a serious offense.

- 20080331 :       For failure to follow lawful order or directive. Specifically, you were directed not to misuse government computers by visiting unauthorized websites. After receiving and understanding this order, you proceeded to visit the very website you were originally counseled for.

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 clemency to be eligible for Department of Veterans Affairs (VA) benefits.
2.       Of the misconduct in his record, the Applicant accepts responsibility for the wrongful use of marijuana and one count of being absent without leave.
3.       The Applicant contends the VA lists his discharge as Other Than Honorable (OTH) and not Bad Conduct.
4.       The Applicant contends his Proficiency (Pro) and Conduct (Con) marks were remarkable, he received a Good Conduct Medal, and earned multiple Letters of Appreciation.

Decision

Date : 20 1 3 0530            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 case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The Applicant’s record of service included 6105 counseling warnings, summary court-martial (SCM) for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave , 2 specifications) and Article 112a ( Wrongful use, possession, etc. of controlled substances) , and for of the UCMJ: Article 86 ( Absence without leave , 10 days) and Article 112a (Wrongful use, possession, etc. of controlled substances , 2 specifications). The court sentenced the Applicant to a Bad Conduct Discharge, confinement for 120 days, and forfeiture of pay and allowances. 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 of Appeals of the Armed Forces. The Applicant’s appellate rights statement and certification of his acknowledgment of those rights, which detail this process, are appended to the verbatim record of trial by court-martial. In the Applicant’s case, the Navy-Marine Corps Court of Criminal Appeals reviewed the c ase and affirmed the decision.

: (Nondecisional) The Applicant seeks clemency to be eligible for VA benefits. The 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.

Issue 2: (Decisional) (Clemency) RELIEF NOT WARRANTED. Of the misconduct in his record, the Applicant accepts responsibility for the wrongful use of marijuana and one count of being absent without leave. During the Applicant’s 3 years and 7 months of service, he received two retention warnings and was found guilty at a Summary Court-Martial and a Special Court-Martial of numerous serious offenses. While the violation of UCMJ Article 112a at his Summary Court-Martial in August 2008 could have led to an administrative discharge for Misconduct (Drug Abuse), it was his Special Court-Martial conviction in December 2008 and awarding of a Bad Conduct Discharge that resulted in his d ischarge from the Marine Corps. The Navy-Marine Corps Court of Criminal Appeals reviewed his case and affirmed the decision. The NDRB determined he does not warrant clemency. Relief denied.



Issue 3: (Decisional) (Clemency) RELIEF NOT WARRANTED. The Applicant contends the VA lists his discharge as OTH and not Bad Conduct. The VA and the Marine Corps use different terminology to track the status of veterans. For the VA, OTH means a discharge characterization that was not Honorable or General and was also not Dishonorable, which can only be awarded as the result of a General Court-Martial conviction. In other words, the VA’s OTH means the former servicemember received either an Under Other Than Honorable Conditions or Bad Conduct Discharge. The Applicant was properly discharged with a Bad Conduct Discharge, and the NDRB determined clemency is not warranted. Relief denied.

Issue 4: (Decisional) (Clemency) RELIEF NOT WARRANTED. The Applicant contends his Pro and Con marks were remarkable, he received a Good Conduct Medal, and earned multiple Letters of Appreciation. The NDRB agrees with the Applicant’s assertion that his Pro/Con marks were remarkable. However, they were remarkable for how low they were at 3.5/3.4 over his enlistment, which is reflective of very poor performance and conduct. Also, the Applicant did not receive a Good Conduct Medal, which requires three years of consecutive service without misconduct. His first instance of official misconduct occurred in August 2008 with his Summary Court-Martial, which was after 2 years and 5 months of service. The retention warnings occurred earlier in his enlistment but do not negate eligibility for the Good Conduct Medal. The confusion about the Good Conduct Medal likely arose from Block 18 on the Applicant’s DD Form 214, which restarts the 3-year eligibility for the medal. The date of 8 December 2008 in Block 18 corresponds to the date of his last misconduct, which was the Special Court-Martial. Finally, the two Letters of Appreciation do not overcome a pattern of very poor performance and conduct during the Applicant’s 3 years and 7 months of service. His Special Court-Martial conviction that led to his Bad Conduct Discharge was certainly warranted, and the NDRB determined clemency 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 determined 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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