ex-, USMC
MD07-00323

Current Discharge and Applicant’s Request

Application Received:  20070118	Characterization Received:   DISCHARGE
Narrative Reason:  COURT MARTIAL 		Authority:  MARCORSEPMAN 1105

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to:   
Applicant’s Issues:	1.  VA benefits.
2.  Clemency
  
Decision

By a vote of 5-0 the Characterization shall remain BAD CONDUCT DISCHARGE.	
By a vote of 5-0 the Narrative Reason shall remain Court Martial.
      

Date:  20071004       					Location:  Washington D.C.  

Discussion
Issue 1:  The Board determined that this Issue is not an issue which can form the basis for relief for the Applicant or that the Board did not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum. 

Issue 2 (Equity).  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.  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.  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.  The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  The NDRB noted the medical record entry on 20040329 citing stressors with military life and the Applicant’s deployed status and the associated difficulties.  The NDRB also noted that there were no medical record entries prior to the misconduct that would offset the misconduct.  The reason for discharge, convicted by special court-martial, is most appropriate.  After a thorough review of the Applicant’s record, issues submitted, post service, and the standards of discipline, the Board determined that clemency was not warranted.    

Summary of Service

Prior Service:
Inactive: USMCR (DEP)	19980227 - 19980907  		Active:   	19980908 - 20011115  
Period of Service Under Review:
Date of Enlistment: 20011116	Years Contracted:  ; Extension:  	Date of Discharge:  20060502
Length of Service:  04  Yrs  05  Mths  16  Dys	Lost Time:  Days UA:    Days Confined:  24
Education Level:  	Age at Enlistment:  	AFQT:  57	MOS:  0614  Highest Rank:  
Proficiency/Conduct marks (# of occasions):	4.3 (6)/4.2(6)	 
Awards and Decorations (per DD 214):  RIFLE MARKSMANSHIP BADGE, NATIONAL DEFENSE SERVICE MEDAL, MARINE CORPS GOOD CONDUCT MEDAL, GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL (KUWAIT), SEA SERVICE DEPLOYMENT RIBBON (2), PRESIDENTIAL UNIT CITATION-NAVY, LETTER OF APPRECIATION, MERITORIOUS MAST  

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

19980227:	Applicant signed Marine Corps policy concerning us of illegal drugs.

20011116:	Reenlisted this date for a term of 4 years.

20020201:	NJP -- Viol UCMJ Art. 123a – Uttered 26 worthless checks from 20011002 to 20011126 in the amount of $2358.08 to MCCS and AFFES.
	Awarded - FOP (692.00) for (1 month); RIR (E-3); Restr for (30 days); Extra duties (30 days).

20020201:	MARCORSEPMAN 6105 counseling for violation of Article 123a of the UCMJ.  Discharge warning issued.

20040419:	MARCORSEPMAN 6105 counseling for Article 112a wrongful use, possession, etc., of a controlled substance(s), specifically, MDA, MDMA, and Methamphetamines.  Confirmed by NAVDRUGLAB, San Diego, CA msg R 192021Z FEB 04.  Being processed for administrative separation.

20040421:	Counselor, Substance Abuse Counseling Center:  Substance abuse screening and assessment.
	Diagnosis:  Substance Use Disorder.  Applicant does not meet any criteria for MDA, MDMA, or THC Abuse/Dependency DSM IV.  Applicant does meet 4 of 7 criteria for Alcohol Dependence DSM IV (303.90). 
Recommendation:  Attend MAAC 03 thru 06 May and Residential Treatment at SARPD Camp Pendleton.  Process IAW MCO P1700.24B.

Discharge Process

Charge(s) and Specification(s):  Article 112a, (3 Specs); Spec 1: Wrongfully used marijuana between 20030801 and 20040206; Spec 2: Wrongfully used methamphetamine between 20030801 and 20030206.  Spec 3: Wrongfully used ecstasy between 20030801 and 20040206; 
Preferred:  20040624	Court-martial:  20041008	Findings:  Guilty of Article(s) 112a (Spec 1,3)
Sentence:  BCD; Conf 60 days; RIR E-1 	 	CA action:  20041022
NC&PB Action:  NONE  				
Appellate Review Complete:  20051025	BCD ordered executed:  20051026 SSPCMCO No. 05-1934
Applicant Discharged:  20060502

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:	Service and/or Medical Record:  		Other Records:  

Related to Post-Service Period:  	
	Employment:  			Finances:  			Education: 		
	Health/Medical Records:  		Substance Abuse:			Criminal Records:  	
	Family/Personal Status: 		Community Service:  		References:  		
	
Additional Statements From Applicant:  	From Representative:    
Other Documentation (Describe)  Statements in Support of Claim, Yahoo Email, Cover Letter from Linn County Veteran's Service

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 01 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.  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 112a and 123a.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe that 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:  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.  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.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’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 Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board 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 subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, 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 “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

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 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.  

Board Membership:  The names and votes of the members of the 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