ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20090218
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)	20011114 - 20020818  	Active:	

Period of Service Under Review:
Date of Enlistment:  20020819	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20050526	Highest Rank:  
Length of Service:    Year(s)    Month(s)  08  Day(s)
Education Level:  	AFQT:  42
MOS:  0811
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle   (Iraq)    (Iraq) 

Periods of UA/CONF:  

NJP:  
- 20030717:	Article 92 (Consume alcohol underage)
	Article 92 (Failed to obey order)
	Awarded:     Suspended:  

- 20040517:	Article 92 (Failure to obey lawful general order)
	Article 128 (Assault)
	Awarded:     Suspended:  

SCM:  

- 20041215:	Article 112a (Wrongful use of a controlled substance), 2 specifications
	Sentence:   

SPCM:  

CC:  

Retention Warning Counseling:  

- 20030717:	For misconduct which resulted in NJP of 20030717
- 20040206:	For violation of Article 92, specifically, excessive speeding in POV, you were ticketed for doing 75 in a 55 mph zone 

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:		Substance Abuse:			Criminal Records:	
	Family/Personal Status: 		Community Service:  		References:  		
              Additional Statements: 
                             From Applicant:  	From Representation:         	From Congress member:    

                    Other Documentation:  
	- VA Maryland Health Care System letter of 15 March 2006
	- VA Application for Health Benefits of 5 March 2006

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

Applicant’s Issues

1. U.S. Department of Veterans Affairs (VA) benefits.
2. Employment opportunities.
3. After testing positive for drugs was led to believe he would be allowed to remain in the Marine Corps after serving in Iraq.
4. Post-service conduct.

Decision

Date:  20090514		Location: Washington D.C.	 Representation: 

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

Discussion

:  ()  .  The Applicant is seeking an upgrade to General (Under Honorable Conditions) to qualify for health benefits if needed in the future due serving seven months in Iraq.  In March 2006, he submitted a letter to the VA Maryland Health Care System, but they denied him VA medical services because he was not eligible.  For the edification of the Applicant, effective Jan. 28, 2008, combat veterans discharged from active duty on or after Jan. 28, 2003, are eligible for combat veteran enhanced eligibility and enrollment placement into Priority Group 6 (unless eligible for higher enrollment Priority Group placement) for 5 years post discharge.  Contact the VA for more information:  http://www1.va.gov/opa/Is1/1.asp or phone: 1-877-222-VETS (8387).  The Applicant also desires to become a police officer like his father.   either  which the Board cannot form the basis of relief for the Applicant, or  the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum, , and  for additional information regarding .

Issue 3:  ()  .  In seeking an upgrade, the Applicant contends prior to leaving for a seven month tour in Iraq, he tested positive for cocaine and while deployed was led to believe he would be able to fulfill his obligation to the Marine Corps.  The Applicant admits he made a life altering decision that he truly regrets and he has never used [drugs] since that time.  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.  The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the characterization of service and/or reason for discharge if such a change is warranted.  The Applicant required a pre-service drug waiver to enlist in the Marine Corps for using marijuana and signed the Statement of Understanding, Marine Corps Policy Concerning Illegal Use of Drugs on 13 November 2001.  The Applicant’s record of service was marred by two retention warnings, two NJPs for violations of the Uniform Code of Military Justice (UCMJ): Article 92 (Disobey a lawful order – underage drinking) (3 specifications) and Article 128 (Assault), and one SCM for violation of the UCMJ: Article 112a (Wrongful use of a controlled substance, cocaine – 1508ng/ml).  Pursuant to MILPERSMAN 1910-146, mandatory processing for separation is required for Marines who illegally and wrongfully use controlled substances.  The Applicant was found guilty at NJP for wrongful use of a controlled substance and admitted to the misconduct.  There is no evidence in the record, nor did the Applicant provide any evidence indicating he was misled or granted permission by competent authority to remain on active duty, after testing positive for cocaine.  Based on the seriousness and frequency of the offenses committed by the Applicant the Board determined an upgrade is not warranted and his in-service performance was not sufficient to justify an upgrade to General (Under Honorable Conditions) characterization of service.  Therefore, relief is denied.

Issue 4:  ()  .  The Applicant contends he has not used any drugs since the incident which led to his discharge.  For the Applicant’s edification, the NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, there is no law or regulation, which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  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 help support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificate (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 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 previous in-service misconduct was an aberration and not indicative of the member’s overall character.

Besides the Applicant’s statement on the DD Form 293, he provided copies of his VA application for health benefits and their negative response.  The Board determined the evidence of post-service conduct was not sufficient enough to warrant an upgrade of his discharge characterization. The Applicant could have produced additional evidence as stated in the above paragraph with the full understanding completion of these items alone does not guarantee an upgrade. Should the Applicant obtain additional evidence or post-service documentation he may wish to apply for a personal appearance.  There are veteran's organizations, such as the American Legion, willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  

After a thorough review of the available evidence, to include the Applicant’s Summary of Service,  Record, Discharge Process and evidence submitted by the Applicant, the Board found 

Pertinent Regulation/Law

A.  The Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present, Paragraph 6210, MISCONDUCT.

B.  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.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe that 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:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the 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.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his 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 Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  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 Board for Correction of Naval Records (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 subsequently is processed for an administrative involuntary separation or is referred to a court-martial for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, 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 Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

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