ex-, USMC
MD07-00938

Current Discharge and Applicant’s Request

Application Received:  20070628 				Characterization Received:   DISCHARGE
Narrative Reason:  COURT-MARTIAL					Authority:  MARCORSEPMAN 1105

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. Clemency 

Decision

By a vote of  the Characterization shall   DISCHARGE.
By a vote of  the Narrative Reason shall  COURT-MARTIAL.

Date:  20071205		Location:  Washington D.C.	 Representation:  

Discussion

Issue 1 (Clemency).  The Board concluded that the Applicant presented 3 claims for consideration:  that his misconduct was due to post-traumatic stress disorder (PTSD) stemming from complications from an operation on his jaw and the stress associated with his combat tour in Afghanistan; that he was denied adequate medical treatment for his problems; and that his post-service conduct has been good (and, in particular, free of substance abuse).   In support of his claim of PTSD, the Applicant provided excerpts from his service medical record.  The Board found these documents to be credible; however, the Board also determined that they did not support the Applicant’s claim.  These records indicate that medical care providers viewed the Applicant’s self-described depressive symptoms to be likely related to his substance (alcohol, in addition to the cocaine use for which he was punitively discharged) abuse.  Further, the Applicant’s version of events presented to the Board is at odds with his own sworn testimony during his court-martial, at which he admitted to knowingly and voluntarily using cocaine on about 14 occasions in order to be accepted by those with whom he spent time while on leave convalescing from his surgery.  The Board found no evidence to support the Applicant’s contention that he was improperly denied appropriate medical care.  The Applicant’s allegations do not refute the presumption of regularity in this case.  Regarding post-service conduct, 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 the service.  The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct which precipitated the discharge.

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.  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)	19970818 - 19970901  		Active:   	19970902 - 20001115  
Period of Service Under Review:
Date of Enlistment: 20001116	Years Contracted:  ; Extension:  	Date of Discharge:  20040407
Length of Service:  03  Yrs  04  Mths  22  Dys	Lost Time:  Days UA:    Days Confined:  48
Education Level:  	Age at Enlistment:  	AFQT:  61	MOS:  0621  Highest Rank:  
Proficiency/Conduct marks (# of occasions):	NOT FOUND IN RECORD	Fitness reports:   
Awards and Decorations (per DD 214):  RIFLE MM, NDSM, GCM, CERTCOM, MERITORIOUS MAST

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

20020715:	MARCORSEPMAN 6105 counseling for positive urinalysis for cocaine.  Advised being processed for administrative separation.

20020920:	MARCORSEPMAN 6105 counseling for special court-martial conviction for cocaine use.

Discharge Process

Charge(s) and Specification(s):  Article 112a, Wrongfully use cocaine on divers occasion between 20020327 and 20020610. 
Preferred:  20020718	Court-martial:  20020917	Findings:  Guilty of Article(s) 112a (on about 14 occasions)
Sentence:  BCD; Conf 120 days; RIR E-1; FOP  $700.00 x 4 months; Other:  NONE 	 	CA action:  undated
NC&PB Action:  NONE FOUND IN RECORD				Appellate Review Complete:  20040106	
BCD ordered executed:  20040405 SSPCMCO No. 04-0081			Applicant Discharged:  20040407

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)       

Pertinent Regulation/Law

A.  Marine Corps Separation and Retirement Manual, (MCO P1900.16F), Paragraph 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURT-MARTIAL, 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, Wrongful use, possession, etc., of controlled substances.

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