Upgrade.Vet

USMC | DRB | 2013_Marine | MD1300251

Original file (MD1300251.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20121115

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)       19950318 - 19960116     Active:

Period of Service Under Review:
Date of Current Enlistment: 19960117     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20020227      H ighest Rank:
Length of Service : Y ea rs M on th 11 D a ys
Education Level:        AFQT: 53
MOS: 6060
Proficiency/Conduct M arks (# of occasions): /          Fitness R eports:

Awards and Decorations ( per DD 214):

Periods of UA :

NJP:

- 19990427 :       Article (Failure to obey order or regulation, contributed to the delinquency of a minor b y providing alcohol to underaged civilian in his BEQ room)
         Article (General A rticle, disorderly conduct, drunkenness, and making loud noises)
         Awarded: Suspended:

SCM:     CC:

SPCM:

- 20000525 :       Art icle (Wrongful use, possession, etc. of controlled substances , 2 specifications )
         Specification 1: On divers occasions, at an unknown location, March 1999, wrongfully used Lysergic Acid Diethylamide (LSD), a controlled substance
         Specification 2: On or about October 1999, at an unknown location, wrongfully used LSD, a controlled substance
         Sentence : (20000525-20000627, 34 days )

Retention Warning Counseling :

- 19960626 :       For failure of U nit 1 core knowledge exam with a score of 72.0.

- 19960725 :       For p oor attitude and lack of motivation toward training.

- 19970206 :       For repeated tardiness from appointed place of duty, not showing proper courtesy to officers and senior enlisted personnel, and a lackadaisical attitude toward standards expected of a Marine.

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 upgrade to receive G.I. Bill benefits and enhance employment and educational opportunities.
2.       The Applicant seek s clemency , contending it was an isolated incident, he had no knowledge of this kind of activity before he joined, he received a Good Conduct Medal after his discharge, and his post-service conduct has been exemplary.

Decision

Date: 20 1 3                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 Government 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 6105 counseling warnings, for o f the Uniform Code of Military Justice (UCMJ): Article (Failure to obey order or regulation, contributed to the delinquency of a minor b y providing alcohol to underaged civilian in his BEQ room ) and Article (General A rticle, disorderly conduct, drunkenness, and making loud noises ) , and for of the UCMJ: Article (Wrongful use, possession, etc. of controlled substances, 2 specifications: [1] On divers occasions, at an unknown location, March 1999, wrongfully used Lysergic Acid Diethylamide (LSD), a controlled substance; [2] On or about October 1999, at an unknown location, wrongfully used LSD, a controlled substance ). The Applicant did not have a pre-service drug waiver for using illegal drugs prior to entering the Marine Corps . The Applicant’s service record documents a punitive conviction and punishment, as adjudged by a Special Court-Martial, on 25 May 2000 . A qualified legal defense counsel represented the Applicant throughout the trial by Special Court-Martial process. Given the facts of the case, the Special Court-Martial awarded the Applicant a Bad Conduct Discharge and confinement for a period of 3 0 days. The case was submitted for review to the U.S. Navy-Marine Corps Court of Criminal Appeals without assignments of error; it was reviewed and the findings were affirmed on 2 0 February 2002 . Subsequently, the Navy Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed.

: (Nondecisional) The Applicant seeks an upgrade to receive G.I. Bill benefits and enhance employment and educational opportunities. 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. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities or employment opportunities. Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge. As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.

: (Decisional) ( ) . The Applicant seek s clemency , contending it was an isolated incident, he had no knowledge of this kind of activity before he joined, he received a Good Conduct Medal after his discharge, and his post-service conduct has been exemplary. During the Applicant’s four years of service before being placed on appellate leave following his Special Court-Martial conviction, the Applicant received three retention warnings and was found guilty at NJP of violating UCMJ Articles 92 and 134. However, since he served the first three years of his enlistment without adjudicated misconduct, he was awarded a Good Conduct Medal. He did not, however, receive a second Good Conduct Medal after his discharge. The confusion over receiving a post-discharge medal likely arose from Block 18 on his DD Form 214, which reset the three year counter for the medal. In May 2000, the Applicant was found guilty at a Special Court-Martial of multiple wrongful uses of LSD, for which he received a Bad Conduct Discharge. The Applicant submitted a personal statement about his post-service conduct but submitted no documentation. After a complete review of the records, 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 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

Similar Decisions

USMC | DRB | 2012_Marine | MD1200574

Original file (MD1200574.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. ” 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. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.
USMC | DRB | 2011_Marine | MD1101963

Original file (MD1101963.rtf) Auto-classification: Denied

Applicant’s Request:Characterization change to: Narrative Reason change to:COMPLETION OF REQUIRED ACTIVE SERVICE Summary of Service Prior Service: Inactive:USMCR (DEP)19980430 - 19980518Active: 19900109 - 19960108 HON Period of Service Under Review: Date of Current Enlistment: 19980519Age at Enlistment: Period of Enlistment: Years MonthsDate of Discharge:20030314Highest Rank:Length of Service: Years Months04 DaysEducation Level: AFQT:56MOS: 3533Proficiency/Conduct Marks (# of...
USMC | DRB | 2009_Marine | MD0900235

Original file (MD0900235.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1. Propriety and clemency. ” Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the date of discharge.
USMC | DRB | 2011_Marine | MD1100169

Original file (MD1100169.rtf) Auto-classification: Denied

Types of Documents Submitted/reviewedRelated 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/ToCongress member: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD...
USMC | DRB | 2013_Marine | MD1301149

Original file (MD1301149.rtf) Auto-classification: Denied

Applicant’s Request:Characterization change to: Narrative Reason change to: Summary of ServicePrior Service: Inactive:USMCR (DEP)19960117 - 19960304Active: Period of Service Under Review: Date of Current Enlistment: 19960305Age at Enlistment: Period of Enlistment: Years MonthsDate of Discharge:19990125Highest Rank:Length of Service: Year(s)Month(s)09 Day(s)Education Level: AFQT:64MOS: 0311Proficiency/Conduct Marks (# of occasions):()/()Fitness Reports: Awards and Decorations (per DD...
USMC | DRB | 2014_Marine | MD1401462

Original file (MD1401462.rtf) Auto-classification: Denied

Types of Documents Submitted/reviewedRelated 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/ToCongress member: Pertinent Regulation/Law A. Paragraph 6210, MISCONDUCT ,...
USMC | DRB | 2014_Marine | MD1400127

Original file (MD1400127.rtf) Auto-classification: Denied

The Applicant’s service record documents a punitive conviction and punishment, as adjudged by a Special Court-Martial, on 2 May 2001. ” 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. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.
USMC | DRB | 2007_Marine | MD0700574

Original file (MD0700574.rtf) Auto-classification: Denied

In service - Equity2. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that Summary of Service Prior Service: Inactive: USMCR (DEP)19890518 - 19890705Active: Period of Service Under Review: Date of Enlistment: 19890706Years Contracted:; Extension: Date of Discharge:19930621Length of Service: 03 Yrs 11Mths17 DysLost Time:Days UA: Days...
USMC | DRB | 2014_Marine | MD1400369

Original file (MD1400369.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. ” 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. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.
USMC | DRB | 2010_Marine | MD1000731

Original file (MD1000731.rtf) Auto-classification: Denied

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. ” 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. Reenlistment/RE-code : Since the NDRB has no jurisdiction...

Search Decisions

Decision Text

USMC | DRB | 2013_Marine | MD1300251

Similar Decisions