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USMC | DRB | 2013_Marine | MD1301795
Original file (MD1301795.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20130910
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)       20041228 - 20050711     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20050712     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20100926      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 14 D a y ( s )
Education Level:        AFQT: 56
MOS: 0612
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

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

Period of UA :

NJP:     SCM:              CC:      Retention Warning Counseling :

SPCM:

- 20100421 :       Art icle 81 (Conspiracy)
         Art icle 108 (Military property of United States - Loss, damage, destruction, or wrongful disposition)
         Article 112a (Wrongful use, possession, etc., of controlled substance , 2 specifications )
         Article 121 (Larceny and wrongful appropriation , 2 specifications )
         Article 134 (General A rticle, rec eived military stolen property)
         Sentence : CONF 1 6 0 days (20100421-20100825, 127 days)

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 :        




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

Applicant’s Issues

 1.       The Applicant contends he warrants an upgrade due to his two deployments to Iraq and in-service decorations.
2.       The Applicant contends he warrants an upgrade due to being held on active duty beyond his enlistment contract due to lengthy legal proceedings .
3.       The Applicant contends others involved were punished less harshly and received Honorable discharges .
4.       The Applicant contends his volunteering of information about other involved Marines should warrant consideration for an upgrade .

Decision

Date: 20 1 4 0410            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. The 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 81 ( Conspiracy ) , Article 108 ( Military property of United States - Loss, damage, destruction, or wrongful disposition ), Article 112a (Wrongful use, possession, etc., of controlled substance , 3 specifications), Article 121 (Larceny and wrongful appropriation, 2 specifications), and Article 134 (General A rticle, received military stolen property) . The Applicant also had a pre-service drug waiver for using marijuana prior to entering the Marine Corps, and acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 17 December 2004 . Based on the offenses committed by the Applicant, command administratively processed for separation. Based on the Article 112a violation , processing for administ rative separation is mandatory. When notified of a dministrative separation processing using the procedure, the Applicant exercised his right to consult with a qualified counsel but rights to submit a written statement and request an administrative board in accordance with a pretrial agreement he signed on 25 February 2010 .

: (Decisional) ( ) . The Applicant contends he warrants an upgrade due to his two deployments to Iraq and in-service decorations. The Applicant was administratively separated as a result of a pretrial agreement and not separated upon expiration of enlistment or fulfillment of service obligation. The characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation. Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition. Based on the Applicant’s record of service, the NDRB determined the Applicant engaged in conduct involving multiple acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service, and the awarded characterization of service was warranted. Further, the Applicant acknowledged and accepted an Under Other Than Honorable Conditions characterization of service as a condition of his pretrial agreement. Relief denied.

: (Decisional) ( ) . The Applicant contends he warrants an upgrade due to being held on active duty beyond his enlistment contract due to lengthy legal proceedings. The Applicant was placed on legal hold prior to his end of active service on 18 February 2009 due to charges pending from criminal misconduct involving the sale of military property to undercover F ederal law enforcement agents. The Applicant ultimately pled guilty t o violating UCMJ Articles 81, 108, 112a, 121, and 134 at a S pecial C ourt- M artial. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention s that he was improperly or illegally retained after his end of active service date or that his trial was improperly delayed. The NDRB determined his Special Court-Martial and discharge proceedings were warranted, proper, and equitable. Relief denied.


: (Decisional) ( ) . The Applicant contends others involved were punished less harshly and received Honorable discharges. While other members of his unit may have been charged with the same or similar offenses, each case must stand on its own merits. The Commanding Officer is allowed to consider matters for extenuation and mitigation unique to each individual. Therefore , no two cases, no matter how similar, are guaranteed to receive the same punishment. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the Marine Corps. A preponderance of the evidence reviewed supports the conclusion that the Applicant committed several serious offenses, that separation from the Marine Corps was appropriate, and that an Under Other Than Honorable Conditions characterization of service was warranted. Relief denied.

4 : (Decisional) ( ) . The Applicant contends his volunteering of information about other involved Marines should warrant consideration for an upgrade. The evidence of record shows that on 25 February 2010 the Applicant entered into a pretrial agreement that accepted his guilty pleas to the specified charges in exchange for trial at a S pecial C ourt- M artial in lieu of a G eneral C ourt- M artial. In this pretrial agreement , the Applicant further waived his rights to an administrative separation board and accepted that his discharge could be Under Other Than Honorable C onditions. The NDRB determined further mitigation due to his testimony 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.

Pertinent Regulation/Law

 A. Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16 F ), 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 II, Para 211, Regularity of Government Affairs , Part V, Para 502, Propriety and Para 503, Equity .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article s 81, 108, 112a, 121, and 134 .


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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