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USMC | DRB | 2013_Marine | MD1300084
Original file (MD1300084.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20121009
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)       19930402 - 19940523     Active:  

Pre-Service Drug Waiver:

Period of Service Under Review:
 Date of Current Enlistment: 19940524     Age at Enlistment:
Period of E nlistment : Years Month
Date of Discharge: 19971009      H ighest Rank:
Length of Service : Y ea rs M on ths 13 D a ys
Education Level:        AFQT: 55
MOS: 2147
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:
Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:    SCM:              CC:      Retention Warning Counseling:

SPCM:
- 19960223 :      Article (Wrongful use, possession, etc., of controlled substances, to wit: MARIJUANA)
         Sentence: 180 days

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative errors on the original DD Form 214:
         “ 7 50322 ”
         Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “ RIFLE EXPERT MEDAL, NATIONAL DEFENSE SERVICE MEDAL ”

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:                  Other Documentation:    
                  Additional Statements:
          From Applicant:           From/To Representation:           From/To Congress member:        


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

 1.       The Applicant contends the characterization of his discharge is unjust and too harsh.
2.       The Applicant contends his post-service achievements warrant consideration for an upgrade.

Decision

Date: 20 1 3 0820            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. T he Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent sta ndards of equity and propriety. The Applicant’s record of service included for of the UCMJ: Article ( Wrongful use, possession, etc., of controlled substances, to wit: MARIJUANA , ). The Applicant a pre-service drug waiver for using marijuana prior to entering the Marine Corps, acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 31 M arch 1993 . Based on the Article 112a violation , processing for administ rative separation is mandatory. Additionally , the Applicant’s record of service in dicated he was referred for trial by Special Court-Martial for violation of UCMJ Article 107 . On 16 September 1997 , the Applicant submitted his request for separation in lieu of trial by court-martial. In the request for discharge, the Applicant noted that his counsel had fully explained the elements of the offenses for which he was charged and that he was guilty of those offenses. He certified a complete understanding of the negative consequences of his actions and that characterization of service could be Under Other Than Honorable Conditions, which might deprive him of virtually all veterans benefits based upon his current enlistment. The Marine Corps accepted this request, and the Applicant was discharged Under Other Than Honorable Conditions for Separation In Lieu of Trial by Court-Martial.

: (Decisional) ( ) . The Applicant contends the characterization of his discharge was unjust and too harsh. The Applicant’s service included one S pecial C ourt- M artial conviction for violation of UCMJ Article 112a. The Applicant was awarded 180 days in confinement but was not awarded a punitive discharge. The Applicant was allowed to serve up to 10 months after completing his confinement before being notified for separation. As part of his administrative separation proceedings, he requested an A dministrative Se paration B oard (ASB). At the commencement of the ASB , the Applicant was told he was being brought up on charges for violating UCMJ Article 107 (False official statement) base d on the difference in statements given at his Special Court-Martial and the ASB. The Applicant then submitted a request to be separated in lieu of a second Special Court-Martial. The NDRB conducted a thorough review of the Applicant ’s records and listened to his testimony and determined his discharge was proper and equitable. Relief denied.

 : (Decisional) ( ) . The Applicant contends his post-service achievements warrant consideration for an upgrade. 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 significant post-service documentation for the Board’s review , documenting almost 15 years of service owning and operating a successful electrical contracting company. He also provided letters of reference from customers, proof of a drug - free life, community service, and financial stability. After a careful review of the Applicant ’ s post-service documentation and official service record, and taking into consideration his testimony, and the facts and circumstances unique to this case, the Board determined the Applicant ’s in-service misconduct was an aberration and full relief is warranted based on equitable grounds. By unanimous vote, the NDRB voted to upgrade the discharge characterization to Honorable and voted to change the narrative reason for separation to Secretarial Authority. Relief granted.


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 the discharge was proper and equitable at the time of the discharge. However, based on the facts and circumstances unique to this case and after considering the Applicant’s extensive post-service conduct in conjunction with his in-service performance and conduct prior to and after the incident that resulted in his discharge, the Board determined full relief was warranted. Therefore, the awarded characterization of service shall and the narrative reason for separation shall . The Applicant is not eligible for further reviews from the NDRB. 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 .

Pertinent Regulation/Law

 A. Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY 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)(b), 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 .


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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