ex-, USMC

Current Discharge and Applicant’s Request 

Application Received:  20091002
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)	19950428 - 19951010  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  19951011	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20010905	Highest Rank:  
Length of Service:    Year(s)    Month(s)  07  Day(s)
Education Level:  	AFQT:  37
MOS:  0811
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle       

Periods of UA/CONF:  CONF 19990928 - 19991115 (49 days)

NJP:  

- 19960613:	Article  (Absence without leave, 2 days, 19960602-19960604)
	Awarded:     Suspended:   ($120 suspended for 6months)

- 19960812:	Article  (Disrespect toward noncommissioned officer, 19960723)
	Awarded:    Suspended:   

- 19961203:	Article  (Absence without leave, 2 days, 19961113-19961115)
	Awarded:    Suspended:   

- 19981109:	Article  (Absence without leave, 2 days, 19981005 and 19981006)
	Article  (False official statement, 19980930)
	Awarded:    Suspended:   (suspended for 6 months)

SCM:  

SPCM:  

- 19991104:	Article  (Wrongful use of controlled substance), 3 specifications
	Specification 1: Wrongfully use marijuana, between o/o 19990518 and o/o 19990601
	Specification 2: Wrongfully use marijuana, between o/o 19990801 and o/o 19990816
	Specification 3: Wrongfully use marijuana, between o/o 19990811 and o/o 19990826
	Sentence:   (120 days)   Suspended:   (>60 days suspended for 12 months)

CC:  

Retention Warning Counseling:  

- 19960103:	For deficiencies in your performance and/or conduct.  You have been found guilty at Office Hours of two violation of Article 86 of the UCMJ (UA) and one violation of Article 92 (Disrespect): A total of three (3) Office Hours since joining the battery. 

Administrative Corrections to the Applicant’s DD 214

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

	Block 8a, Last Duty Assignment and Major Command, should read:  “3DBN 10THMAR 2DMARDIV CAMLEJ NC”

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:	

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 112a.

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

Applicant’s Issues

1.	Applicant seeks upgrade to obtain Veterans Administration Health benefits.
2.	Applicant seeks upgrade based on clemency.
3.	Applicant contends significant errors were made in processing his DD-214 during discharge.

Decision

Date:  20110107		Location: Washington D.C.	 Representation: 

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

Discussion

The 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.  The Applicant identified two decisional issues for the Board’s consideration.  The Board completed a thorough review of the circumstances that led to  discharge and the discharge process to ensure  discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included  6105 retention counseling warning for deficiencies in performance and/or conduct evidenced by guilty finding at Office Hours for two violations of the Uniform Code of Military Justice (UCMJ) Article 86 (UA), one violation of Article 92 (Disrespect), and three Office Hours since joining his unit.  The record also contained   for  of the UCMJ: Article 86 (Absence without leave, 3 specifications: 02-04 Jun 1996, 13-15 Nov 1996, and 05-06 Oct 1998); Article 91 (Willfully disobeying a noncommissioned officer, 23 Jul 1996); and Article 107 (False official statement, 30 Sep 1998), and   for  of the UCMJ: Article 112a (Wrongful use of controlled substance, marijuana, 3 specifications, between 18 May-01 Jun 1999, 01 Aug-16 Aug 1999, and 11 Aug-26 Aug 1999).  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 26 April 1995.  Based on the multiple Article 112a violation offenses committed by the Applicant,  command opted to refer him to trial by special court-martial instead of administratively processing him for separation.  On 04 Nov 1999, the Applicant was found guilty at special court-martial of violating Article 112a and was sentenced to confinement for 120 days, forfeiture of $600.00 pay per month for four months, reduction to paygrade E-1, and a Bad Conduct Discharge.  The Navy and Marine Corps Appellate Leave Activity (NAMALA) affirmed the conviction, and the Applicant was discharged on 05 Sep 2001.

:  (Nondecisional)  The Applicant seeks an upgrade to obtain Veterans Administration health benefits.  The U.S. Department of Veterans Affairs 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.

Issue 2: (Decisional) (Clemency)  RELIEF NOT WARRANTED.  The Applicant seeks an upgrade based on clemency.  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.  The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Court-Martial proceedings, and the Discharge Process, the Board found clemency was not warranted, and the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed.

:  (Decisional) ()  .  The Applicant contends significant errors were made in processing his DD-214 during discharge.  The purpose and scope of the NDRB is to review Navy and Marine Corps service member discharges and determine if issues of propriety and/or equity exist based on the applicable orders and directives in effect at the time of the separation from service.  The NDRB does not normally investigate and subsequently request changes be made to an Applicant’s DD-214 unless errors are identified in the regular course of examining an Applicant’s record during the discharge review process.  Nevertheless, the Board did provide a detailed look at his DD-214 (to include DD-215 correction dated 20060719) and the specific issues raised by the Applicant in his DD-293 (Application for the Review of Discharge).  The NDRB did identify one error on his DD-214, in Block 8a (Last Duty Assignment and Major Command).  The NDRB will recommend to the Commandant of the Marine Corps that the DD-214 be corrected to read “3DBN 10THMAR 2DMARDIV CAMLEJ NC.”

The other issues raised by the Applicant to include: incorrect field artillery course number, claim of a calendar year 1999 medical discharge (versus bad conduct in 2001), incorrect characterization of service, and station where separated were determined to be without merit based on the available evidence and supporting documentation in the Applicant’s service records.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and punitive discharge process, the Board found   Therefore, the awarded characterization of service shall   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, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct.

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 Disabled 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), 2 Navy Annex, Washington, DC 20370-5100 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:  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 BCNR can make changes to reenlistment codes.  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