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)	20060508 - 20060514  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20060515	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20091104	Highest Rank:  
Length of Service:    Years    Months  21  Days
Education Level:  	AFQT:  36
MOS:  0811
Proficiency/Conduct Marks (# of occasions):  NFIR / NFIR	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle MM, NDSM, GWOTSM, SSDR, KDSM

Periods of UA:  

Periods of Confinement:  20080723 - 20080815 (SCM - 24 days); 20090122 - 20090223 (SPCL CM - 33 days)

NJP:  NONE

SCM:  1

- 20080723:	Article 112a (Wrongful use of controlled substance, marijuana)
	Sentence: RIR FOP CONF 30 days (20080723 - 20080815, 24 days)

SPCM:  

- 20090122:	Article 112a (Wrongful use of controlled substance, marijuana)
	Sentence: FOP CONF 60 days (20090122 - 20090223, 33 days) BCD

CC:  NONE 

Retention Warning Counseling:  2

- 20070518:	For being issued an Order of Support by commanding officer for child support

- 20070611:	For being instructed by First Sergeant to make an electronic payment to fulfill obligations of Order of Support on behalf of daughter

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 clemency in requesting an upgrade in the characterization of his service at discharge in order to facilitate access to Department of Veterans Affairs (VA) benefits.

Decisional Issues:  The Applicant seeks clemency, contending that he was improperly processed for administrative separation, which subsequently contributed to his misbehavior and the resulting punitive discharge.  The Applicant contends that personal problems and his ADHD contributed to his misconduct of record and are mitigating circumstances that were not taken into consideration.

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 4-year enlistment contract under a General Enlistment Open Contract, ultimately receiving training as an Artillery Cannoneer with the Marine Corps.  The Applicant’s enlistment record reflects his entry into military service with a waiver to enlistment and induction standards for pre-service illegal drug usage (marijuana); he acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs - in writing - on 04 May 2006 as a function of his enlistment waiver process.  The highest rank achieved by the Applicant during his enlistment tenure was E-2/Private First Class.

The Applicant’s record of service documents two retention-counseling warnings related to financial responsibility to dependents and failing to follow orders.  The Applicant’s service record further reflects a Summary Court-Martial for violation of the Uniform Code of Military Justice (UCMJ), Article 112(a) - Wrongful use possession, etc of a controlled substance (marijuana).  Additionally, the Applicant’s record of service documents a punitive Special Court-Martial for another violation of Article 112(a) of the UCMJ - 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 charge, as specified, in exchange for a sentence limitation regarding confinement.  Given the facts of the case, the military trial judge awarded the Applicant a Bad Conduct Discharge and confinement for a period of 60 days.  The Applicant served 33 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 court were affirmed on 18 August 2009.  Subsequently, the Navy Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed, and the Applicant was discharged from the Marine Corps with a Bad Conduct Discharge on 04 November 2009.  

Nondecisional Issue: The Applicant seeks clemency in requesting an upgrade in the characterization of his service at discharge in order to facilitate access to VA benefits.  There is no requirement, or law, that grants re-characterization solely on the issue of facilitating access to VA benefits.  Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing or facilitating 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 courts of appeal.  As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.  

Decisional Issue (Clemency/Equity)  CLEMENCY NOT WARRANTED.  The Applicant seeks clemency, contending that he was processed improperly for administrative separation, which subsequently contributed to his misbehavior and the resulting punitive discharge.  The Applicant contends that personal and medical problems contributed to his misconduct of record and are mitigating circumstances that were not taken into consideration.  The Applicant failed a command urinalysis test for illegal use of a controlled substance (marijuana) on or about 15 April 2008.  For this violation of the UCMJ, the Applicant was subject to a Summary Court-Martial on 23 July 2008.  Because of this administrative action, the Applicant was reduced in rank to Private/E-1 and was confined for 30 days in the base brig.  Due to good time calculations, the Applicant served 24 days of the 30-day sentence and returned to his command on 15 August 2008.  Violation of Article 112(a) requires mandatory processing for administrative separation by service policy (reference Applicant USMC drug policy signed 20060504).  While pending processing for administrative separation for Misconduct Drug Abuse pursuant to Chapter 6210.5 of the Marine Corps Separation and Retirement Manual, the Applicant again tested positive for illegal drugs (marijuana), on or about 04 September 2008.

The Applicant was referred to trial by Special Court-Martial for his second confirmed use of marijuana while in service.  The Applicant was tried before a military judge alone and pled guilty to the charge as specified in the court-martial charge sheet.  The military judge found the Applicant guilty of the offense, as charged, and awarded him a Bad Conduct Discharge.  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 repetitive misconduct, the NDRB determined that the punishment was equitable and was consistent with the characterization of discharge given others in similar circumstances.  The Applicant’s assertion that other members who committed the same offense received less punishment has no bearing on the Applicant’s misconduct.  While other members of his unit may have been charged with the same or similar offenses, each case stands on its own merits.  The Commanding Officer is allowed to consider matters for extenuation and mitigation unique to each individual.  Therefore no two cases, no matter how similar, are guaranteed to receive the same punishment.  In the Applicant’s case, he was found to have used marijuana after being punished at a Summary Court-Martial for marijuana use.

The Applicant seeks a change in the characterization of his service at discharge to an Honorable discharge.  Characterization of service at discharge is the 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.  After reviewing the Applicant’s issue, the supporting documentation, and the evidence of record contained in the record of trial, the NDRB discerned no inequity in the characterization of service and determined that clemency was not warranted.  Accordingly, by a vote of 5-0, the NDRB determined that the characterization of service shall remain Bad Conduct Discharge.      

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 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