ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20100603
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)	20030123 - 20030324 	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20030325	Age at Enlistment:  
Period of Enlistment:   Years  13 Months
Date of Discharge:  20080828	Highest Rank:  
Length of Service:    Years    Months  2  Days
Education Level:  	AFQT:  32
MOS:  3051
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle (5th)  (3) (w/2 bronze service stars)  

Periods of UA:  20080423 - 20080424 (2 days), 20080426 (1 day)

NJP:  
- 20031231:	Article  (Failure to obey order or regulation, 3 specifications), 20031220
	Specification 1: (Underage drinking)
	Specification 2: (Having a female Marine in a male barracks room)
	Specification 3: (Allowing another Marine to smoke a cigarette in a BEQ room) 
	Awarded:    Suspended:   (suspended 6 months)

- 20060124:	Article  (Failure to obey order or regulation, consumption of alcohol in Iraq), 20051231
	Article  (Assault, inflicting bodily harm on another Marine)
	Awarded: (to E-3)     Suspended:  

SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  
- 20040105:	For three consecutive violations of Article 92 as evidenced at NJP, 20051231.
- 20060124:	For violation of Article 92, consumption of alcohol and Article 128, inflicting bodily harm on another Marine.

Administrative Corrections to the Applicant’s DD 214
The NDRB noted an administrative error on the original DD Form 214:

	  “UNDER OTHER THAN HONORABLE CONDITIONS”
	Block 25, Separation Authority, should read: “MARCORSEPMAN 6419”
	Block 26, Separation Code, should read: “KFS1”
	Block 28, Narrative Reason for Separation, should read: “IN LIEU OF TRIAL BY COURT-MARTIAL”
	
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 improve his employment opportunities.
2.	Applicant contends his youth and immaturity led to the misconduct for which he was separated.

Decision

Date:  20110526		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 conducted 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 counseling warnings for multiple violations of UCMJ Article 92 (5 Jan 04) and violation of Article 92 and 128 while deployed to Iraq (24 Jan 06) and   for  of the Uniform Code of Military Justice (UCMJ): Article  (Failure to obey order or regulation, 4 specifications: 20 Dec 03, underage drinking; female Marine in barracks room after 2200; allowing a Marine to smoke a cigarette in his barracks room; 31 Dec 05, consumption of alcohol in Iraq) and Article 128 (Assault, inflicting bodily harm on another Marine, specifics NFIR).  The Applicant  pre-service waivers for: committing a serious offense, using marijuana five times, and a positive urinalysis test while assigned to the Delayed Entry Program (DEP) prior to entering the Marine Corps.  Additionally, he signed and acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 22 Jan 03.  During the records review, the Board noted that portions of the Applicant’s record were missing as evidenced by: lack of documentation to explain the 1 Dec 07 effective date of E-1 pay grade (DD 214 Block 12h), lack of documentation in support of Applicant’s administrative separation processing due to a Jan 08 positive urinalysis test for THC (Applicant’s letter to the NDRB; DD 214 Blocks 25-28), lack of documentation to explain 23-24 Apr 08 and 26 Apr 08 periods of time lost (DD 214 Block 29) along with the command’s legal or administrative actions in response, and the lack of administrative separation package documents or Separation in Lieu of Trial documentation explaining why the Applicant’s DD 214 did not reflect the Separation Authority decision letter of 15 Aug 08 that directed the Applicant’s command to separate the Applicant under MARCORSEPMAN paragraph 6419 with a KFS1 separation code.  Nevertheless, based on the Article 112a violation, processing for administrative separation is mandatory.  The NDRB did not have the Applicant’s administrative separation package to determine whether the Applicant exercised or waived  rights to consult with a qualified counsel, submit a written statement, and request an administrative separation board or a General Court-Martial Convening Authority review.  The Applicant was separated from the Marine Corps on 28 Aug 08 with an Under Other Than Honorable Conditions discharge due to Misconduct (Drug Abuse).  The NDRB will recommend to the Commandant of the Marine Corps that changes be made to the Applicant’s DD Form 214 to accurately reflect the appropriate Separation Authority, Separation Program Code, and Narrative Reason for Separation as directed by the Commanding General, 2d Marine Logistics Group (reference 15 Aug 08 CG, 2d MLG letter).

:  (Nondecisional) The Applicant seeks an upgrade to improve his employment 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.

:  (Decisional) ()  .  The Applicant contends his youth and immaturity led to the misconduct for which he was separated.  While he may feel this was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  During his initial enlistment accession processing, the Applicant was separated from the DEP due to a positive urinalysis test for marijuana.  He had to obtain a waiver from the Commanding General of the Recruiting Region to allow him to re-enter the DEP and enlist in the Marine Corps.  

Furthermore, after enlistment, the Applicant was sent to NJP twice for misconduct to include drinking alcohol and assault of a fellow Marine while deployed to Iraq.  Within months of return, he tested positive again (refer to Applicant’s letter to the NDRB) for use of marijuana.  After detailed examination and careful consideration of all the facts surrounding the Applicant’s discharge, the NDRB determined that the Applicant’s youth or age was not a mitigating factor in his misconduct.  The NDRB recognizes that serving in the U.S. Marine Corps is challenging.  However, Marines are expected to uphold the high standards of conduct as evidenced in our Core Values of Honor, Courage, and Commitment no matter the mission or environment to which assigned.  When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under Honorable conditions.  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 Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant failed to meet the requirements of conduct expected of all Marines, especially considering his grade and length of service, and falls short of what is required for an upgrade to Honorable.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service and  record entries, the Board found   Therefore, the awarded characterization of service shall   but the narrative reason for separation shall change to .  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