ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20080423
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)  20000616 - 20010603  		Active:   

Period of Service Under Review:
Date of Enlistment:  20010604	Period of Enlistment:   Years   Months	Date of Discharge:  20060712
Length of Service:    Years    Month  09  Days	Education Level:  	Age at Enlistment:  
AFQT:  36	MOS:  0811	Highest Rank:  	Fitness Reports:  
Proficiency/Conduct Marks (# of occasions):		 () /  ()
Awards and Decorations (per DD 214):  Rifle    (2) 

Periods of UA/CONF:  UA:  20040714-20040719 (5 days) 
                                               20041213 (1 day)      
                                 CONF:  20040827-20041115 (81 days)

NJP:      SCM:      CC:    

SPCM:	
- 20041116:  Article 112a (Drug use, wrongful use of marijuana on 20040706 and 20040809), 2 specifications
                      Article 87 (Missing movement)
                      Article 86 (UA), 2 specifications
	        - Specification 1: 20040718-20040720 (2 days)
	        - Specification 2: 0700-1400, 20040827
                      Article 92 (Fail to obey a lawful order by commissioned officer to refrain from driving his POV)
                      Sentence:  BCD; FOP, CONF FOR 150 DAYS (20040827-20041115 ((81 days)) RIR to E-1.
                      CA Action:  Sentence approved and, except for the bad conduct discharge, ordered executed, but the          
                                          execution of that part of the sentence extending to confinement in excess of 90 days is 
                                          suspended for a period of 12 months.
	
6105 Counseling:  

- 20030218:  For unauthorized absence from rifle range formation causing you to be dropped from the range detail.
                      This type of performance is unacceptable, further actions of this nature will result in processing under
                       the UCMJ.

- 20040310:  1.  For unauthorized absence, specifically you did absence yourself from your appointed place of duty 
                      that being Charlie Battery 1st Battalion 11th Marines.  You were instructed to return on 20040310 at
                      0730.
                      
                      2.  For DUI.  You did on or around 20040309 get stopped for DUI.  This type of behavior is totally 
                      unacceptable.  The actions that were taken on your part were of very poor judgment.  This type of 
                      behavior will not be tolerated or accepted.  This type of performance is unbecoming of a Marine and not
                      in keeping with the Core Values of Honor, Courage and Commitment.

6105 Counseling (cont):                        

                      3.  For disobeying a lawful order, specifically you did disobey Marine Corps policy on drinking and
                      driving.  You have been told time and time again with numerous classes on the repercussions of 
                      drinking and driving.  The actions that were taken on your part were not of sound judgment.  This type of 
                      behavior will not be tolerated or accepted.
  
- 20040803:  For lack of financial responsibility by not honoring your financial obligation to your wife for spousal 
                      support.  On 20040729 at 1147, you spouse called and stated that she had not received payment for the 
                      month of June and July in which the payment is due on the 1st of every month.  This is the second time a 
                      call was placed due to non-payment for spousal support.  SNM is advised to ensure all spousal support 
                      is paid and on time.

Administrative Corrections to the Applicant’s DD 214

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

	 DECORATIONS, MEDALS, BADGES, CITATIONS AND CAMPAIGN RIBBONS AWARDED OR AUTHORIZED, should read:  “RIFLE SHARPSHOOTER BADGE, NATIONAL DEFENSE SERVICE MEDAL, HUMANITARIAN SERVICE MEDAL (2), MARINE CORPS GOOD CONDUCT MEDAL, SEA SERVICE DEPLOYMENT RIBBON, GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL, GLOBAL WAR ON TERRORISM SERVICE MEDAL, NAVY MERITORIOUS UNIT COMMENDATION”

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 and/or Medical Record:  		Other Records:  

		- Record of Trial dated 30 September and 16 November 2004

Related to Post-Service Period:	
	Employment:			Finances:			Education/Training:	
	Health/Medical Records:		Substance Abuse:			Criminal Records:	
	Family/Personal Status: 		Community Service:  		References:  		
Additional Statements From Applicant:  		From Representation:  		From Member of Congress:  

Other Documentation (Describe):  

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.

D.  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 86 (UA); Article 87 (Missing movement); Article 92 (Failure to obey an order) and Article 112a (Drug abuse, wrongfully use of a controlled substance).

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

Applicant’s Issues

1.  Desires education benefits.
2.  Inequitable due to honorable service prior to misconduct.
3.  Personal problems due to adjustment issues after tour in Iraq.

Decision

Date:  20090114    	Location:  Washington D.C.	 Representation:  

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

Discussion

:    either  which the Board cannot form the basis of relief for the Applicant, or  the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum, specifically the paragraphs concerning  and Service Benefits, regarding .

:  ()  .  The Applicant contends his discharge was inequitable due to honorable service prior to his misconduct.  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 Applicant’s record of service was marred by 3 retention warnings for UA, driving under the influence and lack of financial responsibility to his spouse and 1 SPCM for violations of the Uniform Code of Military Justice (UCMJ):  Article 86 (UA); Article 87 (Missing movement); Article 92 (Failure to obey a lawful order by a commissioned officer) and Article 112a (Drug abuse, wrongful use of a controlled substance).  These violations are considered serious offenses, especially Article 112a, which the Applicant tested positive for marijuana on two separate occasions.  Upon entering the Marine Corps, the Applicant received a drug waiver and signed a Statement of Understanding stating the Marine Corps zero tolerance policy on drug use.  Additionally, before the Applicant committed the misconduct, he was eligible for promotion to Corporal on three different occasions, but was not recommended due to his lack of judgment, integrity and responsibility. 

The NDRB advises the Applicant despite a Marine’s prior record of service certain serious offenses warrant separation from the service in order to maintain proper order and discipline.  Violation of Article 112a is one such offense requiring mandatory separation regardless of time in service or grade.  Violations of this policy result in, at a minimum, mandatory processing for an administrative separation which usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial.  The Applicant was subject of a SPCM and awarded a “Bad Conduct Discharge” (BCD).  The Board determined clemency was not warranted in this case and an upgrade would be inappropriate.      

Issue 3: ()    The Applicant contends he had personal problems which were due to adjustment issues after his tour in Iraq.  After a thorough review of the Applicants medical record, the Board found no evidence that would suggest the Applicant was suffering from mental health issues or trauma as a result of being in Iraq.  On the Post-Deployment Health Assessment, dated 11 February 2004, the Applicant states he is in excellent health, was not engaged in direct combat where he discharged his weapon, never felt he was in great danger of being killed and did not see anyone wounded, killed or dead during his deployment.  Subsequently, the Applicant was not referred to any counselors for mental health or substance abuse issues related to his tour in Iraq.  The Board has determined there was nothing in the Applicants medical record stating he is not responsible or should not be held accountable for his actions.  Thus, the Board has determined that granting clemency, due to his adjustment issues, would be inappropriate.      

In determining whether clemency is appropriate, the NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, there is no law or regulation, which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service.  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 help support a post service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificate (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; attending 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 previous in-service misconduct was an aberration and not indicative of the member’s overall character to warrant clemency.

Besides the Applicants statement on his  DD Form 293 application, he failed to provide any additional documentation or evidence on his behalf.  To warrant clemency, the Applicant’s post service efforts need to be more encompassing.  The Applicant could have produced additional evidence as stated in the above paragraph with the full understanding completion of these items alone does not guarantee an upgrade.  The Board determined the characterization of service received was an appropriate characterization considering the length of service and the UCMJ violations involved, and based on the lack of post service documentation provided, clemency would be inappropriate.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service and Medical Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found clemency was not warranted and the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed. 

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 or is referred to a court-martial 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 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 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 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 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