ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20080523
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)	19920820 - 19930809  		Active:   

Period of Service Under Review:
Date of Enlistment: 19930810	Period of Enlistment:   Years   Months	Date of Discharge:  19960823
Length of Service:    Years    Months   19  Days	  Education Level:     Age at Enlistment:  
MOS:  0844   Highest Rank:          Fitness Reports:       AFQT:  56
Proficiency/Conduct Marks (# of occasions):	   () / 2.1 ()
Awards and Decorations (per DD 214):  Rifle  Pistol   

Periods of UA/CONF: 19940801 – 19950127 (180 days)

NJP:  

SCM:  

SPCM:	
19950306:  Article 86 (UA), 180 days
                   Sentence:  Confinement for 75 days, RIR to E-1.

19950915:  Article 112a (Drug use, wrongful use of amphetamine/methamphetamine)
                   Sentence:  BCD, Confinement for 60 days, fort $569./mo 2X 

CC:  

6105 Counseling:  
19940726:  For Unauthorized Absence
19950725:  For positive urinalysis for amphetamine/methamphetamine.

Types of Documents Submitted/reviewed

Related to Military Service:	DD 214:  	Service and/or Medical Record:  		Other Records:  

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):  

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

Applicant’s Issues

1.  Recruiter misconduct.
2.  Personal Problems.
3.  Youth and immaturity.
4.  Punishment too harsh for the offense.
5.  Post service conduct.

Decision

Date:  20081002		Location:  Washington D.C.	 Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  SEPARATION AS A RESULT OF COURT MARTIAL.

Discussion

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 issues and case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.

:  ()  .  The Applicant claims his recruiter lied to him regarding his MOS.  He claims his recruiter punished him for wanting to be released from the Delayed Entry Program by giving  him an OPEN CONTRACT, whereby he was made an artilleryman, an MOS he did not want.  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 block 33 of the Applicant’s enlistment contract (DD Form 1966), an option for a communications MOS is lined out and the Applicant clearly signs up for 9900 general services MOS (Open Contract) before he shipped to recruit training.  The Applicant submits no evidence that this is not his signature on the DD Form 1966 or the recruiter altered the document after he shipped.  Based on this, the Board determined an upgrade is not warranted.

:  ()  .  The Applicant states his recruiter lied to him when he told him that he would have time off to take care of his sick father and that his unit denied him the ability to travel 80 miles to tend to his father.  The Applicant’s service record contains statements from his command which attest to the fact the Applicant was relieved from weekend duty in order to return home to care for his father.  Additionally, the command recognized the Applicant needed to be home full time to care for his father, so they started processing him for a Humanitarian Discharge.  However, the Applicant went UA before the discharge request was approved.  Based on this, the Board determined an upgrade is not warranted
  
:  ()  .  The Applicant claims his misconduct was a result of his youth and immaturity.  While he may feel this was the underlying cause of his misconduct, the evidence of record does not demonstrate the Applicant was not responsible for his conduct or that he should not be held accountable for his actions due to youth or immaturity.  The Applicant’s record of service was marred by two SPCM for violations of the Uniform Code of Military Justice (UCMJ):  Articles 86 (UA) and violation of Article 112a (Use of illegal drugs).  The Applicant received a “Bad Conduct Discharge” for a violation of the UCMJ, Article 112a (Drug abuse, by the wrongful use of methamphetaminem).  The Board determined clemency was not warranted and an upgrade or change would be inappropriate.  

 Issue 4:  ()  .  The Applicant does not feel he should suffer his entire life for taking what he thought were “energy pills”, but were in fact amphetamine/methamphetamine tablets.  Despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain 

proper order and discipline.  Illegal drug use cannot be tolerated by any member of the Marine Crops regardless of grade or time in service.  Due to our mission to be every ready to answer our nation’s call to arms, every Marine has the responsibility to be combat ready at all times.  This means he must know exactly what he is ingesting at all times.  The Applicant’s claim he thought he was taking “energy pills” without verifying what substance he was swallowing shows gross negligence and cannot be condoned.  The Board determined clemency was not warranted and an upgrade or change would be inappropriate.  

Issue 5:  (Clemency) RELIEF NOT WARRANTED.  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; 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 company’s, or other financial institutions; documentation of a drug free lifestyle; and character witness statements.  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 conduct mitigates the reason for the characterization of discharge. 

The Applicant did not provide a personal statement, supporting documentation of post service accomplishments or character witness statements to support his request for clemency based on post service conduct.  The Applicant's efforts need to be more encompassing.  For example, the Applicant could have produced evidence of a verifiable employment record, documentation of community/church service, evidence of a drug free existence, and certification of non-involvement with civil authorities, evidence of financial stability; or statements from his references.  Without this documentation, the Board determined clemency was not warranted and an upgrade or change would be inappropriate.   

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

Pertinent Regulation/Law

A.  Paragraph 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURT-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 August 1995 until 31 August 2001.

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.

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, 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