Upgrade.Vet

USMC | DRB | 2006_Marine | MD0600999

Original file (MD0600999.rtf) Auto-classification: Denied

ex-Pvt, USMC
MD06-00999

Current Discharge and Applicant’s Request :

Application Received:                               20 060718
Narrative Reason for Separation:                           MISCONDUCT
Character of Service:
Discharge Authority :                                MARCORSEPMAN 6210.5
Last Duty Assignment/ Command at Discharge:       HQBN 1STMARDIV, CAMP PENDLETON, CA

Applicant’s Request:
         Narrative Reason change to:               NONE REQUESTED
         Characterization chang e to:
         Review Requested :
Representation:                                              DESIGNATED

Decision:

Date of Decision:                                            20 070608
Location of Board:                                  Washington D.C.
Complete Service Record:
Complete Medical Record:
Complete Discharge Package:

Regarding propriety, the Board found the discharge:
Regarding equity, the Board found the discharge:

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

Summary of Service :

Prior Service:
Inactive: USMC R (DEP)                               19980120 - 19980908      COG
Active: NONE
Period of Service Under Review :
Date of Enlistment:                                 19980909
Years Contracted :                                   ;
Date of Discharge:                                  20011121
Length of Service:                                  03 Yrs 02 Mos 13 Days ^{Does not exclude lost time, if any.}
Time Lost During This Period:


Education Level:
Age at this Enlistment:
AFQT:                                                 63
MOS:                                                   0622
Highest Rate/Rank:                                   LCPL

Performance Evaluation Averages (number of marks):
P roficiency / Conduct :                     4.4 (8) 4.2 (8)

Awards and Decorations (as listed on the DD Form 214):
RIFLE MARKSMAN BADGE, GOOD CONDUCT MEDAL, NAVY ACHIEVEMENT MEDAL, NAVY UNIT CITATION, MERITORIOUS UNIT CITATION, SEA SERVICE DEPLOYMENT RIBBON

Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

19980119:        Applicant a cknowledged and signed the statement of understanding Marine Corps Policy Concerning Illegal Use of Drugs.

19980120:        Waiver for pre-service drug use granted.

20010907 :         NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 20010831 , tested positive for methamphetamine.

20010918 :         NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 20010907 , tested positive for amphetamine/methamphetamine.

20010919 :        NJP for violation(s) of UCMJ:
         Article 86: Unauthorized absence
Article 112a: Illegal drug use.
         Award: Forfeiture of $ 5 00 for 2 months, restriction and extra duty for 45 days , reduction to E-2 .
         No t appeal ed .

20010919:        Counseling: Advised of deficiencies in performance and conduct ( Violations of Articles 112a(x2) and 86 of the UCMJ, wrongful use of a controlled substance, specifically methamphetamine, and UA, which resulted in battalion level NJP on 20010919. This type of behavior is substandard for any Marine and will not be tolerated. ), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

20010919:        Counseling: Advised of deficiencies in performance and conduct ( Violation of the UCMJ. ), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.

20011031 :        NJP for violation(s) of UCMJ:
         Article 86 (5 specs): Unauthorized absence.
         Article 1 0 7 : False Official Statement.
         Article134: General article.
         Award: Forfeiture of $ 521 for 1 month , restriction and extra duty for 45 days , reduction to E-1.
         Not a ppealed.

Medical Record Entries Related to Characterization of Service or Narrative Reason for Separation

20011017:        Applicant counseled and acknowledged understanding of VA hospital addiction treatment availability.

20011017:        Applicant refused medical officer evaluation for VA addiction treatment in conjunction with discharge.

Elements of Discharge: [ IN VOLUNTARY]

Discharge Process :                                  ADMINISTRATIVE BOARD PROCEDURE
Date Notified :                                        20011023
Narrative Reason(s):                                MISCONDUCT due to
Least Favorable Characterization:
Commanding Officer’s Intended Recommendation :
Record Supports Narrative Reason :

Date Applicant R esponded to N otification:                 20011023
Rights E lected at N otification :
Consult with Counsel
Administrative Board
Obtain Copies
Submit Statement(s)

Board Date :                                          not applicable
Recommendation of Commanding Officer (date):     UNDER OTHER THAN HONORABLE CONDITIONS ( 20011023 )
SJA review (date):                                   SUFFICIENT IN LAW AND FACT ( 20011105 )
Separation Authority (date):                        COMMANDING GENERAL, 1 ^ST MARINE DIVISION ( 20011114 )
Narrative reason directed :                                   MISCONDUCT
Characterization of directed:
Date Applicant Discharged:                         20011121

Additional Information Considered by Board

Type of d ocumentation submitted by t he Applicant and considered by the Board

        Document Type                                        #Pages
Related to Period of Service:
         Service/Medical Record :                            2
         Other Period of Service:                                    0
Related to Post-Service Period:
         Community Service :                                   0
         Education :                                           0
         Employment :                                          0
         Health /Medical :                                     0
         Character Statements:                               0
         Criminal Records Checks:                                    0
         Additional Statements from Applicant:             0
Other Documentation      (Describe Below)                 0

Total Number of Pages:                            2

Applicant’s Issues as Summarized by the Board:

The Applicant submitted one issue.

1. Quality of Service. Equity

Decisional Issues:

Issue: Quality of service (Equity). The Applicant claims his discharge was inequitable because it was based on one isolated incident in 38 months of service. There is credible evidence in the record that the Applicant used illegal drugs , on at least two occasions, in violation of the UCMJ, Article 112a . Mandatory processing for separation is required for Marines who abuse illegal drugs. Separation under these conditions generally results in characterization of service under other than honorable conditions. The Applicant’s service was further marred by 2 nonjudicial punishments for violations of the UCMJ, Articles 86, 107 and 134. The evidence of record demonstrates that the Applicant’s illegal drug use was not “an isolated incident” in an otherwise exemplary period of service. It does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief is denied.

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. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.

Pertinent Regulation/Law

A. The Marine Corps Separation and Retirement Manual, (MCO P1900.16F, effective 01 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 .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article s 107 (False Official Statement) and 112a (Wrongful use, possession, etc ., of con trolled substance s ).

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 . 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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’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 Board 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 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 “PTSD.” 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 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.

Board Membership: The names and votes of the members of the 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

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USMC | DRB | 2006_Marine | MD0600999

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