ex-, USMC

Current Discharge and Applicant’s Request
Application Received:  20091103
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)	20010906 - 20011008  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20011009	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20060920	Highest Rank:  
Length of Service:    Year(s)    Month(s)  08  Day(s)
Education Level:  	AFQT:  43
MOS:  5811
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle    (Kuwait)  N CoC (Individual Award) LoA

Periods of UA: 20040420 - 20040828 (130 days); 20050125 - 20050324 (58 days)

Periods of In Hands of Civilian Authorities: 20040210 - 20040301 (20 days) San Diego, CA County Jail

Periods of Confinement: 20040828 - 20041206 (98 days), 20050329 - 20050526 (58 Days)

NJP:  	SCM:  

SPCM:  

- 20041027:	Article 86 (Absent from unit 20040420-20040828, 130 days)
	Sentence: CONF 120 days (20040828-20041206, 98 days) 

- 20050520:	Article 86 (Absent from unit 20050125-20050324, 58 days)
	Article 112a (Wrongfully use methamphetamine)
	Sentence: CONF 180 days (20050329-20050526, 58 days)  

CC:  

- 20040301:	Offense:  State of California, Health & Safety Code, Section 11379(a) - Transportation, sale, or distribution of specified controlled substance (Crystal Methamphetamine).  
	Sentence:  3 year probation, $150.00 fine, $250.00 restitution

Retention Warning Counseling:  

- 20050603:	For being found guilty at Special Court-Martial for violation of Article 86, absence without leave, and Article 112a, wrongful use, possession, etc., of controlled substance, specifically, you were absent from your duty station from 20050125 through 20050324, and you had used illegal “amphetamine and methamphetamine” substances (reference NAVDRUGLAB SAN DIEGO, CA dtd 261732 JAN 05).    

Administrative Corrections to the Applicant’s DD 214

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

	  “(130) 20040420-20040828; (98) 20040828-20041206; (58) 20050125-20050324; (58) 20050329-20050526”
	
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.

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

Applicant’s Issues

1.	Nondecisional issues: None

2.	Decisional issues: The Applicant contends that he should not have been discharged due to misconduct and that he should have been treated and medically discharged for his mental health conditions.  Applicant seeks an upgrade in his characterization of service at discharge from Bad Conduct Discharge to General (Under Honorable Conditions).  No change to narrative reason for separation was requested.   

Decision

Date:  20101220		Location: Washington D.C.	 Representation: 

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

Discussion

In reviewing discharges, the Board 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 stated in a court-martial specification are presumed by the NDRB to be established facts.  The Board completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure it met the pertinent standards of equity while determining if any factors in this particular case merited clemency.

The Applicant entered active duty military service on a Recruiting Station Commanding Officer waiver for pre-service drug use (marijuana) and a Recruiting District Commanding Officer wavier for an adjudicated serious law violation (possession of drugs (marijuana) and concealing stolen property).  Furthermore, the Applicant signed the USMC Drug Policy on 06 September 2001, acknowledging that he was fully aware of the Marine Corps Policy of zero tolerance for drug abuse.  He acknowledged the consequences of violation of that policy, in writing, prior to entry on active duty.

The Applicant’s service record reflects that he is a combat veteran, having service in a combat theater of operations in support of Operation ENDURING FREEDOM and Operation IRAQI FREEDOM while forward deployed in Kuwait as a military policeman.  Additionally, the Applicant’s record of service reflects one 6105 retention-counseling warning, no non-judicial punishment, and a civilian conviction in the San Diego, CA County Court on 01 March 2004 for the transportation, sale, or distribution of specified controlled substances (crystal methamphetamine), in violation of California Health and Safety Code statute HS-11379a.  Based on the civilian conviction for a drug violation, the Applicant was required to be processed for separation in accordance with the Marine Corps’ policy for drug abuse.  The Applicant’ service record does not reflect any actions having been taken by the Command.    

The Applicant’s service record is further marred by two separate trials by Special-Court Martial for violations of the Uniform Code of Military Justice (UCMJ).  The Applicant’s first trial by Special Court-Martial convened on 27 October 2004 for violation of Article 86 of the UCMJ: Absence without leave – specifically, absenting himself from his unit, without authority, for 130 days (20040420 – 20040828), which terminated through apprehension by civilian authorities.  He was found guilty of the specified charge and was adjudged a reduction in rank to Private (E-1) and 120 days of confinement.  On 6 December 2004, the Applicant was released from the Base Brig after completing the required period of confinement and was returned to duty with his unit.

The Applicant’s official military record shows that the Applicant was subject to a unit sweep urinalysis on 14 January 2005.  On 25 January 2005, the Applicant again absented himself from his unit, without authority in violation of Article 86 of the UCMJ.  On 24 March 2005, the period of unauthorized absence terminated through apprehension by civilian law enforcement arrest in Colorado.  The Applicant was returned to military control and charged with violation of Article 86 for his unauthorized absence and for violation of Article 112a (wrongful use, possession, etc of a controlled substance (methamphetamines)) as a result of a positive urinalysis sample from the Applicant’s urine sample dated 14 January 2005.  

The Applicant entered into a pre-trial agreement with the Convening Authority; he pled guilty at a Special Court-Martial, was found guilty in trial by judge alone, and was adjudged a sentence of a Bad Conduct Discharge, confinement for 180 days, and ordered a forfeiture of pay.  As stipulated in the pre-trial agreement, all confinement in excess of 70 days was suspended for a period of 12 months, unless sooner vacated due to misconduct by the Applicant or the Applicant failing to request voluntary appellate leave.  The trial by Special Court-Martial was reviewed and affirmed by the U.S. Navy–Marine Corps Court of Criminal Appeals and the Bad Conduct Discharge was ordered executed.

Issue 1: (Decisional) ()  .   The Applicant contends that he should not have been discharged due to misconduct and that he should have been treated and medically discharged for his mental health conditions.  There is no indication in the evidence of record or in the documentation submitted by the Applicant that the Applicant was recommended for - or being processed for - a medical board by proper medical authority.  Furthermore, the evidence of record does not indicate that proper authority erred by not initiating a medical board for the Applicant.  His unit medical officer and the naval hospital mental health professionals were treating the Applicant with prescribed drugs, anger management classes, and combat stress group discussion therapy.  On 09 April 2004, the Applicant received an initial diagnosis of a major depressive disorder (MDD), single episode (post incarceration in San Diego County Jail) with substance abuse (crystal methamphetamine).  The mental health care provider further annotated that the Applicant was a combat veteran and treating providers needed to rule out possible Post-Traumatic Stress Disorder (PTSD) as related to his combat deployment history.  The most recent clinical impression annotated in the Applicant’s medical record was on 25 January 2005 as an Adjustment Disorder with Depressed Mood (DSM IV 309.0).

Department of Defense disability regulations do not preclude punitive or administrative disciplinary separation.  SECNAVINST 1850.4E stipulates that separations for misconduct take precedence over potential separations for other reasons, such as medical.  Therefore, the NDRB found the Applicant’s issue to be without merit.  Clemency denied.

The Applicant was afforded a written retention-counseling warning regarding his conduct and was further retained after being arrested and found guilty of the transportation, sale, or distribution of Crystal Methamphetamine in a civilian court.  Moreover, after being UA for 130 days, the Applicant’s misconduct was referred to trial by Special Court-Martial where he was adjudged a reduction in rank and confinement, but was not discharged.  Based on the history of misconduct, the command determined that the Applicant had engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service and warranted separation under other than honorable conditions.  

While being processed for Administrative Separation, the Applicant continued to engage in willful and deliberate misconduct.  Based on the Applicant’s sworn testimony, he went to a friend’s house with the intended purpose of smoking methamphetamines.  He further attested to going UA after knowing he had failed a urinalysis test and to avoid field training duty that he was ordered to attend.  The Applicant was only returned to military custody after being stopped and arrested by civilian law enforcement officers in Colorado pursuant to a traffic stop for speeding that revealed the military’s warrant for his detainment.       

In this specific case – drug use, civilian conviction for drugs, and extensive periods of repeated unauthorized absence – the Bad Conduct Discharge is appropriate.  The NDRB determined that the reason for discharge, convicted by Special Court-Martial, was proper and is appropriate.  Additionally, the NDRB found that the evidence of record did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded.  The NDRB conducted a thorough review of the available evidence, to include the Applicant’s pre-service waiver; written acknowledgment of the Marine Corps Policy for Drug Abuse; his Summary of Service; Service Record Entries; Medical records; and the Verbatim Record of Trial by Special Court-Martial along with the Applicant’s contentions.  Based on this review, the Board determined that clemency was not warranted and the sentence awarded the Applicant at his Court-Martial was appropriate for the offenses committed.  Relief in the form of clemency is denied. 

Summary:  After a thorough review of the available evidence, the Board found clemency is not warranted.  The sentence awarded the Applicant at his court-martial was appropriate for the offenses committed.  Therefore, the awarded characterization of service shall remain BAD CONDUCT DISCHARGE and the narrative reason for separation shall remain COURT MARTIAL.  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his discharge.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Employment and Educational Opportunities, 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