ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20100219
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)	19980123 - 19980909  	Active:	  19980910 - 20020407 HON

Period of Service Under Review:
Date of Current Enlistment:  20020408	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20050415	Highest Rank:  
Length of Service:    Year(s)    Month(s)  07  Day(s)
Education Level:  	AFQT:  99
MOS:  2171
Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle  (2) Pistol       CoC (3)

Period of CONF:  20050317-20050405, 20 days

NJP:  
- 20030314:	Article 86 (Unauthorized absence, BOOST Newport RI) 
	Article  (Failure to obey an order or regulation, exceeded liberty limits)
	Awarded:    Suspended:   

- 20041222:	Article 134 (Discharged firearm inside city limits), 20041212
	Awarded:     Suspended:   

SCM:  
- 20050331:	Article  (Disrespect toward superior commissioned officer), 20050204
		Article 92 (Failure to obey order, regulation), 2 specifications
		Specification 1: Unauthorized civilian attire, doo rag and earring, 20050204
		Specification 2: Violated 2d Maint BN Order, patronage of off-limits establishment, 20050204 
		Article 134 (General Article, leaving unattended 3 yr old child in vehicle at PX), 20050204
		Awarded:  (to E-1) CONF (30 days)  Suspended:  

SPCM:  	CC:  

Retention Warning Counseling:  
- 20040310:	For violation of Article 86 - Unauthorized absence.  On 20040305 at 0600 you were excused from your work section to bring your daughter to an appointment at 0715, you did not return to your work section later that day.

- 20050104:	For your recent battalion level NJP, specifically for violation of Article 134, clause 80 (Firearm, discharging through negligence).

Administrative Corrections to the Applicant’s DD 214

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

	  “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 980910 UNTIL 020407”
	
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 6419, SEPARATION IN LIEU OF TRIAL BY 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)(b), 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.	Applicant seeks an upgrade to his RE code, contending his discharge was inequitable.
2.	Applicant contends his discharge was improper and inequitable based on his more than six years of service.

Decision

Date:  20110331		Location: Washington D.C.	 Representation: 

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

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.  In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant identified one decisional issue for the Board’s consideration.  The Board completed a thorough review of the circumstances that led to  discharge and the discharge process to ensure  discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included  6105 retention warnings for unauthorized absence (10 Mar 2004) and wrongfully discharging a firearm within city limits (22 Dec 2004) and   for  of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, failing to muster for BOOST training after weekend liberty, Newport RI), Article 92 (Failure to obey order or regulation, exceeded BOOST out of bounds liberty limits without permission, Newport RI), and Article 134 (General Article, wrongfully discharging weapon within city limits).  The record also included a Summary Court-Martial (17 Mar 2005) for violations of the UCMJ: Article 89 (Disrespect toward superior commissioned officer, 4 Feb 2005, rolled his eyes and sighed at a Marine major who confronted him), Article 92 (Failure to obey order or regulation, 4 Feb 2005, 2 specifications: Wearing unauthorized civilian attire and patronage of off-limits establishment), and Article 134 (General Article, left unattended 3 yr old child in vehicle at PX).  The records also indicate the Applicant tested positive for amphetamine after a unit urinalysis test.  The Applicant’s command then referred him for trial by court-martial for violation of UCMJ Article 112a (Wrongful use, possession, etc of a controlled substance, amphetamine, between 7-17 Mar 2005), a violation that is punishable by 5 years confinement and a Bad Conduct or Dishonorable Discharge if awarded at trial by punitive courts-martial (Special or General).  The Applicant did not have a pre-service drug waiver upon entry into the Marine Corps, but did acknowledge his complete understanding of the Marine Corps Policy Concerning the Illegal Use of Drugs on 22 January 1998.  After consulting with qualified counsel and considering the possible consequences of a Federal conviction and/or punitive discharge, the Applicant submitted a request to his commanding officer for administrative separation in lieu of trial by court-martial (SILT).  In the request, the Applicant, in exchange for pleading guilty to the offense in which he was charged, offered to accept administrative separation with a characterization of service no less than Under Other Than Honorable Conditions, thereby avoiding a possible conviction and/or punitive discharge by court-martial.  The command accepted the Applicant’s request, and he was subsequently administratively separated from the Marine Corps on 15 Apr 2005.

:  (Nondecisional) The Applicant seeks an upgrade to his RE code, contending his discharge was inequitable.  The Applicant’s contention of inequity regarding his discharge is addressed in Issue 2 below.  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 Board for Correction of Naval Records 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.

:  (Decisional) ()  .  The Applicant contends his discharge was improper and inequitable based on his more than six years of service.  The Board reviews the propriety and equity of each Applicant’s discharge individually.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service.  The Applicant requested discharge for the good of the service to escape trial by court-martial.  In the request, the Applicant noted his rights were thoroughly explained to him, that he exercised his right to consult counsel, and that he “believed his request was in his best legal and personal interest.”  Furthermore, the Applicant admitted guilt to the charges preferred against him.  He further certified a complete understanding of the negative consequences of his actions and that characterization of his service could be Under Other Than Honorable Conditions.  The evidence of record does not demonstrate the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The Applicant claims that he did not use illegal drugs that caused him to test positive for amphetamine during urinalysis testing.  In his statement to the Board, he admitted to taking an “Aderol” pill from his roommate and swallowing it not knowing what it would do.  This is exactly why he was charged with violation of UCMJ Article 112a, which not only includes wrongful use, possession, etc of illegal drugs (i.e., cocaine, marijuana, etc), but also the use of legal prescription drugs when the use is not authorized by medical authority (i.e., prescription for individual who uses the medication).  Based on the circumstances surrounding the UCMJ Article 112a offense and the Applicant’s in-service performance, which included two 6105 retention warnings, two NJPs, and a Summary Court-Martial, his command chose not to impose commanding officer’s nonjudicial punishment, but instead opted to refer him to trial by court-martial.

The Applicant also claims in his statement to the Board that he chose to submit a request for SILT, because he felt he would not receive a fair trial after undergoing a previous Summary Court-Martial in March 2005, where he felt he was “maliciously prosecuted” and subsequently found guilty of violation of UCMJ Articles 89, 92, and 134.  The Board, after conducting a detailed and exhaustive analysis of all the available evidence, found no merit in the Applicant’s claim of impropriety by his command.  Moreover, the Board determined that the Applicant’s request for separation in lieu of trial and subsequent approval and processing by his chain of command was conducted in accordance with the applicable orders and directives in effect at the time of his separation.  Lastly, the Board concluded that the General Court-Martial Convening Authority who approved the separation very likely considered the Applicant’s total years of service and overall performance therein when accepting his request for separation in lieu of trial by court-martial, and thereby awarded the character of service and separation program code (SPD) appropriately and in consideration thereof.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries and separation in lieu of trial process, the Board found   Therefore, the awarded characterization of service shall   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 for additional information.

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