ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20100922
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)	20020323 - 20020324  	Active:	 20020325 - 20060105 HON

Period of Service Under Review:
Date of Current Enlistment:  20060106	Age at Initial Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20091216	Highest Rank Held:  
Length of Service:    Years    Months  11  Days
Education Level:  	AFQT:  50
MOS:  0311
Proficiency/Conduct Marks (# of occasions):  NFIR / NFIR	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle EX (2), Pistol EX (2), GCM (2), CAR, ACM, ICM, GWOTEM, SSDR (3), GWOTSM, NDSM, JMUA, NUC, MUC, LOC, CertCom (2)

Periods of UA:  

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

SPCM:  1

- 20090331:	Article 92 (Failure to obey order or regulation, wrongfully inhale the gas, fumes, and vapors of an aerosol container with the intent of inducing intoxication, excitement, and stupefaction)
	Article 134 (Wrongfully solicit members of the U. S. Marine Corps to disobey a lawful general order, advising Marines to wrongfully inhale the gas, fumes, and vapors of an aerosol container for the purpose of inducing intoxication, excitement, and stupefaction)
	Sentence: BCD, RIR E-2, CONF 120 days (20090331 - 20090519, 48 days) 

Administrative Corrections to the Applicant’s DD 214

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

	Block 4a, Grade, Rate or Rank, should read:  “PFC”
	Block 4b, Pay Grade, should read:  “E-2”

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 contends he was coerced into pleading guilty and that he was not afforded the opportunity to have any of his character witnesses present at his Special Court-Martial.

Decisional Issues:  The Applicant seeks clemency, contending that his characterization of service at discharge was overly harsh and inequitable as his misconduct was an isolated incident in what was an otherwise outstanding military career.  

Decision

Date:  20120103               	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 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 as 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.  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 documents that he entered military service at age 19 on a 4-year enlistment contract for a guarantee of training as an Infantryman.  The Applicant’s enlistment record reflects his entry into military service without any waivers to enlistment or induction standards.  The Applicant completed his first enlistment contract honorably; he executed an immediate reenlistment for another four years and three month commitment, commencing on 06 January 2006.  The highest rank achieved during his enlistments was Sergeant (E-5).  The Applicant completed two combat deployments as an Infantryman: His first combat deployment was as a Fire Team Leader in the Paktia Province of Afghanistan in 2004 in support of Operation ENDURING FREEDOM and his second deployment was to the Al-Anbar Province of Iraq in 2009 in support of Operation IRAQI FREEDOM.  The military service record further documents that he was awarded the Combat Action Ribbon for his actions while engaged in direct combat operations against enemy forces.  The Applicant’s record of service documents no retention-counseling warnings and no nonjudicial punishments; however, the record does document one Special Court-Martial for violations of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation - did wrongfully inhale the gas, fumes, and vapors of an aerosol container with the intent of inducing intoxication, excitement, and stupefaction) and Article 134 (Wrongfully did solicit members of the U. S. Marine Corps to disobey a lawful general order, advising Marines to wrongfully inhale the gas, fumes, and vapors of an aerosol container for the purpose of inducing intoxication, excitement, and stupefaction).  A qualified legal defense counsel represented the Applicant throughout his trial.  The Applicant exercised his right to trial by military judge alone and further elected to plead guilty to the charges as specified.  Given the facts of the case, the trial judge awarded the Applicant a Bad Conduct Discharge, confinement for 120 days, and reduction in grade to E-2.  In accordance with the signed pre-trial agreement, the Convening Authority limited the period of confinement served to 45 days.  The U.S. Navy-Marine Corps Court of Criminal Appeals reviewed the case and affirmed the decision, ordering the Bad Conduct Discharge be executed.

Nondecisional Issues: The Applicant contends he was coerced into pleading guilty and that he was not afforded the opportunity to have any of his character witnesses present at his court-martial.  In accordance with Secretary of the Navy Instruction 5420.174D of 22 December 2004, relevant and material facts as stated in a court-martial are presumed by the NDRB to be established facts.  As such, matters of propriety related to the conduct of a punitive court-martial (e.g., Special Court-Martial) are addressed through the appellate review process by the Navy-Marine Corps Court of Criminal Appeals or through further petitioning for a review by the Court of Appeals of the Armed Forces.  The Applicant’s appellate rights statement and certification of his acknowledgment of those rights, which detail this process, are appended to the verbatim record of trial by court-martial.  In the Applicant’s case, the Navy-Marine Corps Court of Criminal Appeals reviewed the case and affirmed the decision.  As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.
Decisional Issues: (Clemency/Equity) PARTIAL CLEMENCY WARRANTED.  The Applicant seeks clemency, contending that his characterization of service at discharge was overly harsh and inequitable; his misconduct was an isolated incident in what was an otherwise outstanding military career.  The NDRB reviewed all of the available records, supporting documents, facts, elements of discharge, and circumstances unique to this case.  Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Naval Service to maintain good order and discipline.  Paragraph 6210.5 of the Marine Corps Separation and Retirement Manual specifically directs that commanders shall process all Marines for administrative separation for illegal, wrongful, or improper use, possession, sale, transfer, distribution, or introduction on a military installation of any controlled substance, marijuana, steroids, or other dangerous or illicit drug or other forms of substance abuse (such as designer drugs, fungi, chemicals not intended for human consumption, etc.) as defined in SECNAVINST 5300.28C).  Violation of this SECNAV Instruction - by wrongfully inhaling gas, fumes, and vapors of an aerosol container with the intent of inducing intoxication, excitement, and stupefaction - is punishable under Article 92 of the UCMJ and requires mandatory processing for administrative separation due to drug abuse.  However, commanders may also pursue a punitive discharge through trial by Special or General Court-Martial instead of the more lenient administrative discharge process.  In the Applicant’s specific case, he was found to have violated the SECNAV Instruction (while in Iraq) and was referred to trial by Special Court-Martial, in theater, for this offense.  After reviewing the Applicant’s issues, the supporting documentation, his multiple combat deployments, and the evidence of record contained in the verbatim record of trial, coupled with the normal standards of discipline of the service, the NDRB determined that some form of clemency was warranted.  However, the NDRB considered the Applicant’s request for an Honorable or General (Under Honorable Conditions) discharge to be inappropriate due to the nature of his in-service misconduct.

Characterization of service at discharge is recognition of the quality of a Marine’s performance and conduct; it cannot be underestimated, as characterization of service serves as a goal for each Marine and as a meaningful endorsement of their service to potential employers.  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.  A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record.  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.  The NDRB determined that the Applicant’s misconduct of record was conduct involving one or more acts or omission 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.  

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   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