ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20100908
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)	19961217 - 19970127  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  19970128	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20020205	Highest Rank:  
Length of Service:    Years    Months  09  Days
Education Level:  	AFQT:  72
MOS:  6322

Proficiency/Conduct Marks (# of occasions):   / 	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle , LOA(2)

Periods of UA/CONF:       

NJP:  NFIR     SCM:  NONE     CC:  NONE     Retention Warning Counseling:  NFIR

SPCM:  1

- 19991029:	Article 112A (Wrongful use of a controlled substance, marijuana, on board MCAS, 2 specifications)
	   Specification 1 - Wrongful use of a controlled substance, marijuana, on or about 22 July 1999, aboard
 	   MCAS, Miramar, CA
	   Specification 2 - Wrongful use of a controlled substance, marijuana, on or about 16 August 1999,     
                          aboard MCAS, Miramar, CA
	Sentence:  BCD, RIR to E-1, FOP for 3 months, CONF 60 days (19991029 - 19991216, 48 days)
	Convening Authority Action: Sentence is approved and, except for the BCD, is ordered executed

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 eligibility for Department of Veterans Affairs (VA) educational benefits and future employment opportunities.  

Decisional issues: The Applicant contends that his discharge characterization of service was inequitable because it was the result of a single, isolated incident and the Applicant was young and impressionable at the time of his discharge.   

Decision

Date:  20120104	       	Location: Washington D.C.	 Representation: none

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

Discussion

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, 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 recognized 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 at age 18 on a 5-year enlistment contract under an Aviation Electronics Technician option, ultimately receiving training as an Avionics Electrical Systems Technician with the Marine Corps.  The Applicant’s enlistment record further reflects his entry into military service without any waivers to enlistment and induction standards; he acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs - in writing - on 16 December 1996 as a function of his enlistment contract.  The highest rank achieved by the Applicant during his enlistment tenure was E-4/Corporal.  The Applicant’s record of service documents no retention-counseling warnings or nonjudicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ).  However, the Applicant’s record of service documents a punitive Special Court-Martial for violation of Article 112(a) of the UCMJ: Two specifications of wrongful use, possession, etc of a controlled substance - marijuana.  A qualified legal defense counsel represented the Applicant throughout the trial by Special Court-Martial process.  In accordance with a signed pre-trial agreement, the Applicant requested trial by judge alone and pled guilty to the charges, as specified, in exchange for a sentence limitation regarding confinement.  Given the facts of the case, the trial judge awarded the Applicant a Bad Conduct Discharge, reduction in grade to E-1, and confinement for a period of 60 days.  The Applicant served 48 days of the 60-day sentence before being released from confinement.  The case was submitted for review without any assignment of error to the U.S. Navy–Marine Corps Court of Criminal Appeals; it was reviewed and the findings of the Special Court-Martial were affirmed on 26 January 2001.  Subsequently, the Navy Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed on 05 February 2002, and the Applicant was discharged from the Marine Corps with a Bad Conduct Discharge.

Besides his DD Form 293, the Applicant provided no other documentation in support of his petition for a change to his discharge.  

Nondecisional Issue: The Applicant seeks an upgrade in the characterization of his service at discharge in order to facilitate future employment opportunities.  There is no requirement, or law, that grants re-characterization solely on the issue of facilitating or enhancing employment opportunities.  Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge.  In review of punitive discharges, the NDRB is further restricted to awarding clemency based on equity only - propriety is established by the appeal review process in the military court of appeals system.  As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.  

Decisional Issue (Clemency/Equity)  PARTIAL CLEMENCY WARRANTED.  The Applicant seeks clemency in the form of an upgrade in the characterization of his service at discharge to Honorable, contending that his discharge characterization of service was inequitable because it was the result of a single incident and the Applicant was young and impressionable at the time of his discharge.  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 2 years and 6 months prior to being referred to trial by Special Court-Martial.  The NDRB reviewed all of the available records, supporting documents, facts, elements of discharge, and circumstances unique to this case.  Given the circumstances of the case, coupled with the nature of the misconduct and the standards and norms of the service, the NDRB determined that the punishment was not equitable, nor consistent with the characterization of discharge given others in similar circumstances.  As such, the NDRB determined that some form of relief was warranted.

The Applicant seeks a change in the characterization of his service at discharge to an Honorable discharge.  Characterization of service at discharge is recognition of the quality of a Marine’s performance and conduct.  Most Marines serve honorably; in fairness to them, commanders and separation authorities are tasked to ensure that service members receive no higher characterization than is due.  An Honorable characterization of service is the highest quality of characterization and is appropriate when the quality of a Marine’s service has met the standards of accepted conduct and performance of duty for military personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate.  However, an Under Other Than Honorable Conditions discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service.  Accordingly, the NDRB determined that the Applicant’s misconduct of record was conduct involving one or more acts or omissions that did constitute a significant departure from the conduct expected of members of the Naval Service.  As such, by a vote of 5-0, the NDRB determined that the characterization of service shall change to Under Other Than Honorable Conditions.  Partial clemency granted.  Full relief to Honorable was not granted due to the serious nature of the misconduct.

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 found that some form of clemency was warranted.  Therefore, the awarded characterization of service shall  UNDER OTHER THAN HONORABLE CONDITIONS, but 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