ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20091119
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)	20060421 - 20060521  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20060522	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20090513	Highest Rank:  
Length of Service:    Year(s)    Month(s)  12  Day(s)
Education Level:  	AFQT:  41
MOS:  0811
Proficiency/Conduct Marks (# of occasions):  / 	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle     

Period of CONF:  Pre-trial 20080424 - 20080709, 77 days.  UA: 

NJP:  

- 20070422:	Article  (Wrongful use of a controlled substance, marijuana)
	Awarded:    Suspended:  

SCM:  

SPCM:  

- 20080710:	Article  (Wrongfully distribute about ten (10) pills of ecstasy, a schedule I controlled substance)
	Sentence:  CONF 11 months 

CC:  	Retention Warning Counseling:  

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 issue: The Applicant seeks an upgrade in his characterization of service at discharge in order to better his opportunities for employment with local law enforcement agencies.  

2.	Decisional issue: The Applicant contends that he warrants clemency in characterization of service at discharge due to his post-service conduct.  Applicant seeks clemency in characterization of service at discharge in order to better serve his family, community, and country.

Decision

Date:  20110310	     	     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 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 stated in a court-martial specification 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 indicates he entered military service at age 18 on a 4-year enlistment contract under an open contract enlistment, achieving the military occupational specialty of Artilleryman.  The Applicant’s enlistment record reflects his entry into military service without any pre-service waivers.  Moreover, the Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs, in writing, on 19 April 2006.  The highest rank achieved by the Applicant during his enlistment was E-3/Lance Corporal.  The Applicant is a combat veteran, having served honorably while conducting combat operations in support of Operation IRAQI FREEDOM.     

The Applicant’s period of service under review reflects no 6105 retention-counseling warnings and one non-judicial punishment for violation of the Uniform Code of Military Justice (UCMJ): Article 112(a) (Wrongful use, possession, etc of controlled substances - marijuana).  Additionally, the Applicant’s record of service contains a trial by Special Court-Martial for another violation of Article 112 (a) (Wrongful use, possession, etc of controlled substances, to wit: wrongful distribution of 3,4 methylenedioxymethamphetamine (Ecstasy) aboard a military installation).  

The Applicant was represented by qualified defense counsel during his trial by Special Court-Martial.  In accordance with the his signed pre-trial agreement, the Applicant requested trial by military judge alone and further elected to plead guilty to the charge of violation of Article 112(a) of the UCMJ.  In trial by judge alone, the Applicant was found guilty of violating Article 112 (a), as specified.  Given the facts of the case, the trial judge awarded the Applicant a Bad Conduct Discharge, confinement for 11 months, forfeiture of pay, and reduction in rank to E-1.  In accordance with the pre-trial agreement, the convening authority limited the confinement to 180 days.  The Applicant served the remaining confinement on his sentence after receiving credit for the 77 days of pre-trial confinement already served.  The case was submitted for review by the U.S. Navy–Marine Corps Court of Criminal Appeals without specific assignment of error; it was reviewed and the findings were affirmed.  Subsequently, the Bad Conduct Discharge was ordered executed on 06 April 2009.  On 05 November 2010, the Naval Clemency and Parole Board (NC&PB) reviewed the case with a determination that no clemency was warranted.    

Issue 1: (Nondecisional) - The Applicant seeks an upgrade in his characterization of service at discharge in order to better his opportunities for employment with local law enforcement agencies.  There is no requirement, or law, that grants re-characterization based solely on the issue of enhancing employment or educational opportunities.  As regulations limit the NDRB’s review solely to a determination of clemency under the pertinent standards of equity, this issue does not serve to provide a foundation upon which the Board can grant relief.

Issue 2: (Clemency/Equity) RELIEF NOT WARRANTED.  The Applicant seeks clemency in the form of an upgrade in the characterization of his service at discharge due to his post-service conduct.  Furthermore, the Applicant contends that clemency in characterization of service at discharge is equitable in order to serve better his family, community, and country.  The Applicant seeks no change to his narrative reason for separation.  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.  Besides the Applicant's statement on the DD Form 293, he failed to provide any additional documentation and evidence on his behalf to support a post-service conduct review.  The Applicant's statements alone, without sufficient documentary evidence, are not enough to form a basis of relief.  On page 4, Item 8, in the instructions for completion of DD Form 293, the Applicant is notified to submit any evidence "which substantiates or relates directly to your issues in Item 6 (Issues: Why an upgrade or change is requested and justification for the request).”  Additionally, upon receipt of the Applicant's DD Form 293, the NDRB mails an acceptance letter that includes the Information Concerning Review Procedures, which discusses the submission of additional documents in paragraph 3, Submission of Evidence, and in the last section on page 4, Information Pertaining to a Review Based upon Post-Service Conduct.  The Applicant should be aware submission of these items alone does not guarantee clemency as each discharge is reviewed by the NDRB on a case-by-case basis.  The NDRB determined the Applicant did not provide sufficient post-service documentary evidence to form a basis of relief.

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 contained a nonjudicial punishment for illegal use of marijuana, occurring just prior to his unit’s deployment to Iraq.  The results of the urinalysis were received while deployed in the theater of operations.  Based on the Article 112(a) violation, processing for administrative separation was mandatory.  The Applicant’s chain of command opted to allow the Applicant to remain in theater and did not process him for separation following the imposition of nonjudicial punishment.  Upon return to his home-station, the Applicant’s extended family was suffering financial hardships as a lingering result of Hurricane Katrina.  The Applicant chose to engage in the sale of illegal drugs - on board a federal installation, to other military members - in order to supplement his income to assist his extended family in making house payments.  Moreover, as documented in the verbatim record of transcript of the Trial by Special Court-Martial, the Applicant had continued his illegal use of marijuana and participated in the use of ecstasy while on active duty.

The NDRB found the evidence of record, along with the Applicant’s statements, did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded.  Given the unique circumstances of the case, coupled with the nature of the misconduct, the NDRB agreed unanimously that the punishment was equitable and that relief in the form of clemency was not warranted.  Therefore, after reviewing the Applicant’s issue, the supporting documentation, and the evidence of record contained in the verbatim transcript of the trial, the NDRB discerned no inequity in the characterization of service and determined that clemency was not warranted.  Relief denied

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, the verbatim transcript record of trial by Special Court-Martial, and the discharge process, the Board found that  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