ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20100909
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)	20060308 - 20060312  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20060313	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20091016	Highest Rank:  
Length of Service:    Year(s)    Month(s)  04  Day(s)
Education Level:  	AFQT:  36
MOS:  0311
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle   

Periods of UA:  

NJP:  

- 20060901:	Article  (Failure to obey lawful order or regulation by wrongfully contributing alcohol to a minor)
	Awarded:    Suspended:  

SCM:  

SPCM:  

- 20070927:	Article  (False official statement)
	Article  (Wrongful use, possession, etc of a controlled substance, 2 specifications)
	Specification 1: Wrongfully distributed some amount of controlled substance (marijuana)
	Specification 2: Wrongfully introduced a controlled substance (marijuana) onto a Federal installation
	Article 134 (Wrongfully endeavored to impede an investigation by influencing the actions of a USMC Private in the case of the accused by directing the Private to clean out traces of marijuana from his truck)
	Sentence: ,  for 10 MONTHS (20070928 - 200800218, 144 days),  12 Months, 
	Convening Authority Action (20080106) The sentence is approved and, except for the BCD, will be executed, but the execution of that part of the sentence extending to all confinement in excess of 180 days is suspended for a period of 12 months

CC:  

Retention Warning Counseling:  

- 20070910:	For your inability to follow traffic rules and regulations of the state of North Carolina or aboard military installations (seatbelt violation).
Administrative Corrections to the Applicant’s DD 214

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

	  “2009  10  16”

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 503, Equity.

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

Applicant’s Issues

Nondecisional issues: The Applicant seeks an upgrade in the characterization of his service at discharge in order to facilitate employment opportunities and reenlistment in the armed forces.

Decisional issues: The Applicant did not identify any decisional issues related to the equity of the discharge action for the NDRB’s consideration.

Decision

Date:  20120103	       	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 NDRB 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.  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.  In response to the Applicant’s clemency request, relevant and material facts as stated in a court-martial are presumed by the NDRB to be established facts.  As such, 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 service record indicates he entered military service through the Delayed Entry Program at age 22 on a four-year enlistment contract under a guarantee of training as an Infantryman.  The Applicant’s enlistment record reflects his entry into military service without any waivers to enlistment and induction standards.  As a function of the enlistment contract process, the Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning the Illegal Use of Drugs - in writing - on 08 March 2006.  The highest rank achieved by the Applicant during his enlistment was E-3/Lance Corporal.

The Applicant’s record of service includes one paragraph 6105 retention-counseling warning and one nonjudicial punishment (NJP) for the following violation of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation by wrongfully providing alcohol to minors).  Moreover, the Applicant was subject to trial by Special Court-Martial for the following  of the UCMJ:
•	Article 107 (False official statement)
•	Article 112a (Wrongful use, possession, etc., of controlled substances, 2 specifications) 
•	Article 134 (Wrongfully endeavor to impede an investigation).

A qualified legal defense counsel represented the Applicant throughout his trial by Special Court-Martial.  The Applicant was tried in accordance with a signed pre-trial agreement in which the Applicant agreed to provide a written stipulation of the facts and to plead guilty to the specified charges, as agreed, in a trial before a judge alone; in return, the Convening Authority agreed to a limitation on any confinement adjudged in excess of 180 days.  Given the facts of the case, the military trial judge awarded the Applicant a Bad Conduct Discharge, confinement for a period of 10 months, and a forfeiture of pay for 12 months; in accordance with the rules for courts-martial, reduction to the pay grade of E-1, though also adjudged, was mandatory.  As established in the pre-trial agreement, the Convening Authority suspended all confinement in excess of 180 days.  The Applicant submitted a request for clemency to the Commandant of the Marine Corps; as such, the Naval Clemency and Parole Board reviewed the case for matters of clemency, which it denied.  The case was submitted for review to the U.S. Navy–Marine Corps Court of Criminal Appeals without any assignment of error; it was reviewed, and the findings were affirmed on 20 March 2008.  Subsequently, the Navy Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed.  The Applicant’s final discharge was effected on 16 October 2009.
Nondecisional Issues:  The Applicant seeks an upgrade in the characterization of his service at discharge in order to facilitate employment opportunities and reenlistment in the armed forces.  The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the armed forces, and is not authorized to change a reentry code.  Additionally, there is no requirement, or law, that grants re-characterization solely on the issue of facilitating employment opportunities or access to veterans benefits programs.  Regulations limit the NDRB’s review solely to a determination of clemency based on matters regarding the equity of a discharge when considering a change to a punitive Bad Conduct Discharge.  As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.

NDRB Board Review: (Clemency/Equity)  RELIEF NOT WARRANTED.  The Applicant did not identify any decisional issues related to the equity of the discharge action for the NDRB’s consideration.  However, the NDRB conducted a thorough review of the Applicant’s discharge under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  The Applicant’s service record documents a period of service of approximately 14 months prior to the misconduct that resulted in referral of charges for trial by Special Court-Martial.  In this short time, the Applicant received a nonjudicial punishment for violating orders and regulations.  In addition to the specified charges for the trial by court-martial, the Applicant provided an official statement, specifying that he had been illegally using marijuana (a controlled substance in violation of the Marine Corps Policy on Illegal Drug Use) for approximately 6 months.  In addition to this documented pattern of misconduct and commission of serious offenses, the Applicant agreed to purchase and sell a controlled substance (marijuana) to another Marine (a cooperating witness to the Naval Criminal Investigative Service).  This sale involved the introduction of a controlled substance onto a military installation.  Due to the severity of the charges, and the nature of the misconduct, the command chose to pursue punitive action by referring the charges to trial by Special Court-M artial.       

The NDRB recognizes that many of our service members are young at the time they enlist for service, however, most manage to serve their enlistments honorably.  While some members may be less mature than others, the NDRB does not view a member’s youth or immaturity to be a mitigating factor or a sufficient reason for misconduct, especially deliberate and repetitive misconduct.  Moreover, despite a servicemember’s prior record of service, certain serious offenses warrant separation from the Naval Service to maintain proper order and discipline.  The pattern of documented illegal drug use and general contempt for good order and discipline, coupled with the introduction and distribution of drugs aboard a military installation, is not minor misconduct and supports the findings of the court- martial in awarding a Bad Conduct Discharge.  The NDRB found that the evidence of record, along with the Applicant’s statement, did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge characterization was awarded.  Given the short period of the Applicant’s service, coupled with the repetitive and extensive nature of serious misconduct, the NDRB agreed unanimously that the punishment, as awarded, was warranted and was equitable; relief in the form of clemency is not warranted.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, the record of trial by Special Court-Martial, and the discharge process, the NDRB determined that clemency was not warranted.  Therefore, the awarded characterization of service shall  BAD CONDUCT DISCHARGE 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 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