Upgrade.Vet

USMC | DRB | 2014_Marine | MD1400065

Original file (MD1400065.rtf) Auto-classification: Denied

ex-, USMCR

Current Discharge and Applicant’s Request

Application Received: 20130913

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 19791123 - 19800528       Active: USMCR    19800529 - 19800822
         USMCR 19800823 - 19810606        USMCR   19810607 - 19810724
         USMCR 19810725 - 19861020        USMC    19861021 - 19940908
         USAR 19960118 - 1 9960 313         USMCR   19960602 - 19960927
         USMCR 19960314 - 19960601        USMCR   19961015 - 19961230
         USMCR 19960928 - 19961014        USMCR   19970128 - 19970724
         USMCR 19961231 - 19970127

Period of Service Under Review:
Date of Current Enlistment: 19970725     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20010905      H ighest Rank:
Length of Service:
         Inactive:        Year(s) Month(s) 00 D ay(s)
         Active: Year(s) Month(s) 12 D ay(s)
Education Level:        AFQT: 50 / 78
MOS: 2531 / 8411
Fitness Reports:

Awards and Decorations (per DD 214):     Pistol (4) (3) AFRM COC (18) LOA (8) MM (6)

Periods of Time Lost (per DD 214): 19990308-19990311 , 4 days ; 19990616-19990318, 3 days ; 19990509-19990525, 17 days

NJP:     SCM:              CC:

SPCM:

- 19990506 :      Article ( Absence without leave without leave )
         Article (Wrongful use, possession, etc., of controlled substances , 3 specifications )
         Specification 1: Wrongfully use cocaine on or about 19981205.
         Specification 2: Wrongfully use cocaine on or about 19990108.
         Specification 3: Wrongfully use cocaine on or about 19990312.
         Article (Making, drawing, or uttering check, draft, or order without sufficient funds, intent to deceive and for the payment of a past due obligation wit: wrongfully and unlawfully make and utter to a hotel, certain checks for payment that he knew would not have sufficient funds available for payment in full at their presentment)
         Article (General A rticle , dishonorably fail to pay debt of $1,377.95 for hotel services at the time it was due )
         Sentence : CONF 90 days

Retention Warning Counseling:

- 19970911 :      For inappropriate use of government owned vehicles.

Administrative Corrections to the Applicant’s DD 214

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

         “ ”
         “ 1997 07 25 ”
         “ 04 01 12 ”

The NDRB will recommend to the Commandant of the Marine Corps , MMSB-13, 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:

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 a n upgrade to be eligible for the P ost 9/11 GI Bill.
2. The Applicant seeks to restore his rank from E-1 to E-8.
3. The Applicant seeks a formal medical retirement to qualify for the Reserve Retirement Program.
4. The Applicant contends his disciplinary problems were the result of stress caused by the loss of a service member that he worked with in the past, life threatening difficulties following hernia surgery, and three military moves.
5. The Applicant contends P ost- T raumatic S tress D isorder (PTSD) was a mitigating factor in his misconduct.
6. The Applicant contends his post-service conduct warrants an upgrade to Honorable.

Decision

Date: 20 1 4 0501 Location: Washington D.C . R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall .

Discussion

As a result of the Applicant ’ s claim of PTSD, in accordance with U.S. Code, Title X, Section 1553(d)(1), the Naval Discharge Review Board reviewed the Applicant ’ s record to see if he deployed in support of a contingency operation and was, as a consequence of that deployment, diagnosed with either PTSD or T raumatic Brain Injury . A review of his record revealed that he did not deploy in support of a contingency operation, and so his case did not warrant an expedited review in accordance with U.S. Code, Title X, Section 1553(d)(1). Notwithstanding U.S. Code, Title X, Section 1553 (d)(1), the Naval Discharge Review Board included a member who is a physician, clinical psychologist, or psychiatrist.

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 NDRB 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 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 in his current enlistment included 6105 counseling warning and for of the UCMJ: Article 86 (Absence without leave, 1 specification), Article 112a ( Wrongful use, possession, etc. of controlled substances, cocaine, 3 specifications), Article 123a (Making, drawing, or uttering check, draft, or order without sufficient funds, 1 specification), and Article 134 (General A rticle, 1 specification). The Applicant’s service record documents a punitive conviction and punishment, as adjudged by a Special Court-Martial, on 06 May 1999. 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 90 days. The C onvening A uthority approved the sentence as adjudged, but suspended all confinem ent in excess of time served (30 days) in accordance with the terms of a pretrial agreement. 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 05 September 2001 . However, previous to the Court of Criminal Appeal’s findings in September 2001, the Naval Clemency and Parole Board remitted the Bad Conduct Discharge and ordered the separation of the Applicant with a General (Under Honorable Conditions) characterization of service. This separation occurred on 05 September 2001.

: (Nondecisional) The Applicant seeks a n upgrade to be eligible for the P ost 9/11 GI Bill. The NDRB has no authority to upgrade a discharge or change a discharge date 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.

: (Nondecisional) The Applicant seeks to restore his rank from E-1 to E-8. The NDRB has no authority to reinstate one’s rank. The Applicant can apply to the Board for Correction of Naval Records (BCNR) using DD Form 149 for this request.

: ( D ecisional) (Propriety) RELIEF NOT WARRANTED. The Applicant seeks a formal medical retirement to qualify for the Reserve Retirement Program. Per regulations, the initiation and submission of medical boards are at the discretion of the individual physician. There is no indication in the evidence of record or in the documentation submitted by the Applicant that the Applicant was recommended for or processed for a medical board by proper authority. Further, the evidence of record does not indicate that proper authority erred by not initiating a medical board for the Applicant. 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.

4 : (Decisional) ( ) . The Applicant contends his disciplinary problems were the result of stress caused by the loss of a service member that he worked with in the past , life threatening difficulties following hernia surgery, and three military moves. The NDRB recognizes that serving in the military is challenging. Most service members, however, serve honorably and therefore earn their Honorable discharges. In fairness to those service members, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. In his current enlistment, the Applicant was found guilty of numerous serious offenses at a Special Court-Martial and was sentenced to confinement and a Bad Conduct Discharge, which was upheld on appellate review. However, the Naval Clemency and Parole Board determined clemency was warranted and ordered the Applicant to be discharged with a General (Under Honorable Conditions) characterization of service. The NDRB determined the Applicant’s personal problems were not mitigating factors in his misconduct , there was no evidence that he was not responsible for his actions or should not be held accountable for his misconduct, and further clemency is not warranted . Relief denied.

5 : (Decisional) ( ) . The Applicant contends PTSD was a mitigating factor in his misconduct. After a complete review of the records and documentation submitted by the Applicant, the NDRB determined PTSD did not mitigate his misconduct , and there is no basis for relief on this issue. Relief denied.

6 : (Decisional) ( ) . The Applicant contends his post-service conduct warrants an upgrade to Honorable. 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 a personal statement, evidence of completed and continual education, teaching certification , resume, evidence of educational activity, medical treatment records, and two character references. The NDRB determined further clemency is not warranted based on post-service conduct. 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 | 2014_Marine | MD1400065

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