ex-, USMC

Current Discharge and Applicant’s Request

Applicant’s Request:     Characterization change to:
         Narrative Reason change to:

Summary of Service

Prior Service:
Inactive:        USMCR (DEP)      19980710 - 19990627     Active: 

Period of Service Under Review:
Date of Current Enlistment: 19990628    Age at Enlistment:
Period of Enlistment: Years Months
Date of Discharge: 20021113     Highest Rank:
Length of Service: Year(s) Month(s) 17 Day(s)
Education Level:        AFQT: 43
MOS: 2531
Proficiency/Conduct Marks (# of occasions): () / 2.4 ()        Fitness Reports:

Awards and Decorations (per DD 214):     Rifle CoA

NJP:

- 20000217:      Article 2 specifications
         Specification 1: On or about 1300, 19991216 to 1630, 19991218
         Specification 2: On or about 0730, 20000103 to 0630, 20000106
         Article 112a (Wrongful use, possession, etc., of controlled substances; Marijuana)
         Awarded: Suspended:

SCM:

SPCM:

- 20001130:      Article 86 (Absence without leave; 20000515-20000124, 163 days)
         Sentence: 90 days (20001102-20001129, 28 days)
         Convening Authority’s Action: The sentence is approved and, except for the Bad Conduct Discharge ordered executed, but the execution of that portion of the sentence adjudging all confinement in excess of time served is suspended for a period of 12 months from the date of this action, at which time, unless sooner vacated, the suspended portion of the sentence will be remitted without further action.

CC:

Retention Warning Counseling:

- 20000125:      For counseled this date concerning my failure to conform to Marine Corps standards, specifically my recent NJP for violation of Articles 86x2 and 112a of the UCMJ.

- 20000426:      For administrative separation with an other than honorable characterization of service by reason of misconduct due to drug abuse approved by CG, MCAGCC, on 000411. Separation suspended for a period of 12 months and that any further instances involving the UCMJ may result in immediate vacation of the suspended discharge. Record of proceedings may be requested from Staff Judge Advocate, MCAGCC 788265, Twenty-nine Palms, CA 92278-8265 in the event of subsequent vacation proceedings.

Administrative Corrections to the Applicant’s DD 214

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

         “(2) 19991217-19991218; (3) 20000103-20000105; (163) 20000515-20001024, (28) 20001102-20001129”

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:        

Types of Witnesses Who Testified

         Expert:           Character:      

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 .

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

Applicant’s Issues

1.       The Applicant seeks enhanced employment opportunities.

Decision


Date: 20150901           Location: Washington D.C.        Representation:

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

Discussion

The Naval Discharge Review Board (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 governmental 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 included 6105 counseling warnings, for of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, two specifications) and Article 112a (Wrongful use, possession, etc., of controlled substances; one specification); and for of the UCMJ: Article 86 (Absence without leave, one specification). 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 15 June 1998. Based on the offense(s) committed by the Applicant, command administratively processed for separation after his NJP. Based on the Article 112a violation, processing for administrative separation was mandatory.

The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board. However, the Applicant’s service record shows that the Applicant’s Separation Authority elected to suspend the awarded Under Other Than Honorable Conditions discharge characterization for 12 months barring any further instances involving UCMJ violations. The record next shows the Applicant committed additional misconduct resulting in the previously listed special court-martial. Based on the Applicant's conviction and sentence at a special court-martial, he was confined and separated with a Bad Conduct characterization of service. The record shows the applicant fully exercised his rights during the Appeals process. On 4 November 2002 the Navy and Marine Corps Appellate Leave Activity promulgated Special Court-Martial Supplemental Order No. 02-1362 finally affirming the Navy-Marine Corps Court of Criminal Appeals (NMCCA) No. 200200564 verdict that Article 71(c) of the UCMJ had been complied with and ordered the Applicant’s Bad Conduct Discharge to be executed.

As a result of the Applicant’s in-service screening for adjustment disorder, which may have impacted his discharge, and in accordance with U.S. Code, Title X, Section 1553 (e)(2), the Naval Discharge Review Board included a member who is a clinical psychologist or psychiatrist, or a physician with special training on mental health disorder. The Applicant’s service record documents the Applicant was diagnosed with cannabis dependence and was scheduled to be screened for adjustment disorder by the mental health department by the Intervention and Treatment Center, Twenty-nine Palms, while serving in the armed forces. The NDRB did not find any diagnosis beyond cannabis dependence by a qualified medical professional in the Applicant’s service record. The NDRB’s review of the Applicant’s request for discharge upgrade determined that there was not any mental health concerns present in his request for discharge review to this board to consider.

: (Nondecisional) The Applicant seeks enhanced employment opportunities. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. Additionally, the evidence of record did not show that the Applicant’s diagnosis of Adjustment Disorder was a sufficient mitigating factor to excuse the Applicant’s conduct or accountability concerning his actions and cannabis dependence. After an exhaustive review, the NDRB determined that the Applicant’s Mental Health Diagnosis did not mitigate the Applicant’s misconduct. Possession and use of marijuana were conscious decisions that violate the tenants of honorable and faithful service. 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 remain BAD CONDUCT DISCHARGE 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 , or http://www.secnav.navy.mil/mra/bcnr/Pages/default.aspx 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: Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code. 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