Upgrade.Vet

USMC | DRB | 2006_Marine | MD0601045

Original file (MD0601045.rtf) Auto-classification: Denied

ex-PFC, USMC
MD006-01045

Current Discharge and Applicant’s Request :

Application Received:                               20 060711
Narrative Reason for Separation:                           MISCONDUCT
Character of Service:
Discharge Authority :                                MARCORSEPMAN 6210.5
Last Duty Assignment/ Command at Discharge:       1STBN 3DMAR 3DMARDIV

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

Decision:

Date of Decision:                                            200706 14
Location of Board:                                  Washington D.C.
Complete Service Record:                                    YES
Complete Medical Record:                           YES
Complete Discharge Package:                        YES
Regarding propriety, the Board found the discharge:
Regarding equity, the Board found the discharge:         EQUITABLE

By a vote of the Characterization shall UNDER OTHER THAN HONORABLE CONDITIONS
By a vote of the Narrative Reason shall M I SCONDUCT

Summary of Service :

Prior Service:
Inactive: USMC R (DEP)                               20010918 - 20011203
Active: NONE
Period of Service Under Review :
Date of Enlistment:                                 20011204
Years Contracted :                                   ;
Date of Discharge:                                  20040326
Length of Service:                                  02 Yrs 03 Mos 23 Days ^{Does not exclude lost time, if any.}
Time Lost During This Period:

Education Level:
Age at this Enlistment:
AFQT:                                                 33
MOS:                                                   0311
Highest Rate/Rank:                                   LCPL

Performance Evaluation Averages (number of marks):
P roficiency :                                         4.3 ( 7 )
Conduct :                                              4.1 ( 7 )

Awards and Decorations (as listed on the DD Form 214):
NATIONAL DEFENSE SERVICE MEDAL, SHARPSHOOTER RIFLE BADGE

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

199804xx:        Applicant tested positive on urinalysis for cocaine while in Air Force delayed entry program.

20010913:        Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

20010918:        Pre-service waiver for drug abuse granted.

20031211 :         UCLA Olympic Analytical Laboratory reported Applicant’s urine sample, received 20031202 , tested positive for steroids.

20040115:        Applicant’s statement to NCIS .

20040213 :        NJP for violation(s) of UCMJ:
         Article 112a: On or about or between 20031009 to 20031109 used Anabolic Androgenic Steroids.
         Award: Forfeiture of $ 668 for 1 month , restriction and extra duty for 3 0 days , reduction to E-2.
         Not a ppealed.

20040304:        Director, Substance Abuse Counseling Center, Applicant screened as directed: Applicant does not meet the criteria for Drug Abuse or Dependence. Applicant do e s not require any further treatment.

20040306:        Counseling: Advised of deficiencies in performance and conduct by m y illegal drug involvement (Anabolic Steroids ). U sage identified through urinalysis confirmed by UCLA Testing Facility on 20031211. N ecessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.

20040326:        Commander, Marine Corps bases Hawaii issues Applicant a Debarment letter from MCB Hawaii.

Elements of Discharge: [ IN VOLUNTARY]

Discharge Process :
Date Notified :                                        20040304
Basis for Discharge :                                MISCONDUCT FOR ILLEGAL DRUG USE
Least Favorable Characterization:
Commanding Officer’s Intended Recommendation :
Record Supports Narrative Reason :                          YES
Date Applicant R esponded to N otification:                 20040304
Rights E lected at N otification :
Consult with Counsel
Administrative Board
Obtain Copies
Submit Statement(s) (date)

Recommendation of Commanding Officer (date):     UNDER OTHER THAN HONORABLE CONDITIONS ( 20040309 )
SJA review (date):                                   ( 20040325 )
Discharge directed by (date):                       COMMANDER, MARINE CORPS BASE HAWAII ( 20040326 )
Narrative reason directed :                                   MISCONDUCT DUE TO DRUG ABUSE
Characterization directed:
Date Applicant Discharged:                         20040326

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 Under Review :
         Service/Medical Record :                            1
         Other Period of Service:                                    0
Related to Post-Service Period:
         Community Service :                                   0
         Education :                                           0
         Employment :                                          1
         Health /Medical :                                     0
         Character Statements:                               3
         Criminal Records Checks:                                    0
         Additional Statements from Applicant:             1
Other Documentation      (Describe Below)                 0

Total Number of Pages:                            6

D escription of Other Documentation:

Applicant’s Issues, as summarized by the Board:
1. Employment opportunities.
2. Post Service.

Issue 1: The Board determined that this Issue is not an issue which can form the basis for relief for the Applicant or that the Board did not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum regarding this issue.

Decisional Issues:
The Board accepted Issue 2 for consideration.

Issue 2 : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that 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. The Applicant provided three character statements and a letter from his current employer as documentation of post-service accomplishments. The Applicant's efforts need to be more encompassing than those provided. For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, evidence of drug free existence, and certification of non-involvement with civil authorities. The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge. Relief denied.

There is credible evidence in the record that the Applicant used illegal drugs. 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 record indicates that he admitted his drug use. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.

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 significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. The Applicant’s service was marred by the award of nonjudicial punishment (NJP) on one occasion for violation of the Uniform Code of Military Justice (UCMJ) Article 112a. Violation of UCMJ Article 112a is considered a serious offense for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial. An upgrade to honorable would be inappropriate.

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.

Minority Opinion

None

Pertinent Regulation/Law

A. The Marine Corps Separation and Retirement Manual, (MCO P1900.16F ) , effective 01 Sep 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 112a, Wrongful use, possession, etc., of a controlled substance.

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 | MD0601045

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