ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20110408
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)	19990107 - 19990830  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  19990831	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20030830	Highest Rank:  
Length of Service:    Year(s)    Month(s)  00  Day(s)
Education Level:  	AFQT:  81
MOS:  0656
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle  (2)   LoA

Periods of UA/CONF:  

NJP:  

- 20030523:	Article  (Drugs - Ecstasy 1061 ng/ml)
	Awarded:     Suspended:  

SCM:  

SPCM:  

CC:  

Retention Warning Counseling:  

Administrative Corrections to the Applicant’s DD 214

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

	  “UNDER OTHER THAN HONORABLE CONDITIONS”

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.  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.

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

Applicant’s Issues

1.	The Applicant wants his leave balance returned in cash.  
2. 	The Applicant contends his discharge was improper, because he was denied proper counsel as delineated in his counsel’s letter requesting reconsideration of the administrative board’s findings.  His counsel contends there were several substantive and procedural errors encountered during the administrative separation board.  
3.	The Applicant contends his discharge was improper, because he fulfilled his four-year service obligation.  
4.	The Applicant contends his discharge was based on an isolated incident, and his record of service as illustrated by his Proficiency and Conduct markings, exemplary behavior, volunteer work, in-service character references, and Good Conduct Medal warrants consideration for upgrading his discharge.
5.	The Applicant contends his post-service conduct warrants consideration for upgrading his discharge.

Decision

Date:  20120621		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’s record of service did include one non-judicial punishment for violation of the Uniform Code of Military Justice (UCMJ): Article  (Wrongful use of a controlled substance, ).  He acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 4 January 1999.  Based on the Article 112a violation, processing for administrative separation is mandatory.  When notified of administrative separation processing using the administrative board procedure, the Applicant   rights to consult with a qualified counsel, submit a written statement, and request an administrative board.  By majority vote, the board determined that the preponderance of the evidence proves all alleged acts or omissions and recommended separation with an Under Other Than Honorable Conditions character of service.

:  (Non-decisional) The Applicant wants his leave balance returned in cash.  This issue does not serve to provide a foundation upon which the NDRB can grant relief.  The NDRB has no jurisdiction over granting compensation for leave balances.  Concerns regarding these matters can be addressed to the Board for Correction of Naval Records.  Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

:  (Decisional) ()  .  The Applicant contends his discharge was improper, because he was denied proper counsel as delineated in his counsel’s letter requesting reconsideration of the board’s findings.  His counsel contends there were several substantive and procedural errors encountered during the administrative separation board.  The NDRB presumed regularity in that a qualified legal advisor to the Separation Authority reviewed the discharge board proceedings to ensure they were proper and that the Applicant’s due process rights were not violated.  The commander’s letter dated 29 August 2003 lists the Staff Judge Advocate (SJA) Review as one of its enclosures, even though the enclosure was not found in the Applicant’s records.  The NDRB presumed that the Separation Authority reviewed all applicable documents and ordered the separation of the Applicant for Misconduct (Drug Abuse).  The NDRB determined that the discharge was proper and equitable.  Relief denied.

:  (Decisional) ()  .  The Applicant contends his discharge was improper, because he fulfilled his four-year service obligation and was retained on active duty beyond his End of Active Service (EAS) date as evidenced by his travel documents and his not receiving the DD Form 214 until after his EAS.  According to regulations, Marines undergoing administrative separation processing will not be involuntarily retained on active duty past their release date.  On 26 June 2003, the Applicant elected to exercise his right to appear before an administrative board.  The administrative board took place on 27 and 28 August 2003.  The board recommended separation Under Other Than Honorable Conditions, which was approved by Commander, 3d Marine Aircraft Wing on 29 August 2003.  The administrative separation process was completed on 30 August 2003, which also coincided with the Applicant’s EAS.  The Applicant’s DD Form 214 and the NAVMC 118(3) found in his service record reflect that he was officially discharged on 30 August 2003.  Neither the physical receipt of a DD Form 214 after his EAS date nor his travel documents reflecting a flight departing after his EAS date are official markers of the date of discharge or proof of being held past his EAS date.  Relief denied.

Issue 4:  (Decisional) ()  .  The Applicant contends his discharge was based on an isolated incident, and his record of service as illustrated by his Proficiency and Conduct markings, exemplary behavior, volunteer work, in-service character references, and Good Conduct Medal warrants consideration for upgrading his discharge.  Despite a service member’s prior record of service, medals, references, Pro/Con marks, and volunteer work, certain serious offenses, even though isolated, warrant separation from the Marine Corps to maintain proper order and discipline.  Violation of Article 112a is one such offense requiring mandatory processing for administrative separation regardless of performance, grade, or time in service.  This usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial.  The Applicant wrongfully used a controlled substance.  However, his command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge.  The NDRB found the characterization of the Applicant’s discharge was equitable.  Relief denied.

Issue 5:  (Decisional) ()  .  The Applicant contends his post-service conduct warrants consideration for upgrading his discharge.  The NDRB considers 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.  The Applicant provided a copy of marriage and birth certificates, evidence of college completion, home ownership, evidence of no criminal involvement with law enforcement, and a personal statement.  Completion of these items and those in the Post-Service Conduct paragraph in the Addendum alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration.  Although the Applicant provided a significant amount of documentation pertaining to his post-service conduct, it was still not sufficient to convince the NDRB that it demonstrated his in-service misconduct was an aberration.  The Board concluded that the characterization of service was equitable.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries and discharge 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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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