Search Decisions

Decision Text

USMC | DRB | 2006_Marine | MD0601153
Original file (MD0601153.rtf) Auto-classification: Denied

ex-, USMC
MD06-01153

 Current Discharge and Applicant’s Request :

Application Received:                               20 060828      
Characterization of Service:                      
Narrative Reason for Separation:                          
Discharge Authority :                                MARCORSEPMAN PAR 6210.5
Last Duty Assignment/ Command at Discharge:       2DBN 1STMAR 1STMARDIV

Applicant’s Request:    
         Characterization change to:              
         Narrative Reason change to:              
         Review Requested:                         
Representation:                                             


Decision:

 Date of Decision:                                            20070719      
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:      PROPER
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 MISCONDUCT

Applicant’s Issues, as summarized by the Board:
 1. To be able to access Veterans Administration benefits.
2. Unfair discharge characterization due to record of service.
 3. Post service.


Summary of Service:

Prior Service:
 Inactive: USMCR (DEP)                               20021011-20030309

Period of Service Under Review:
 Date of Enlistment:                                 20030310
Years Contracted :                                   ; Extension:
Date of Discharge:                                  20040830
Length of Service
         Active:                                      01 Yrs 05 Mths 21 D ys (Does not exclude lost time)

Time Lost During This Period:                      0
        
Education Level:                                   
Age at this Enlistment:                                     18
AFQT:                                                 66
MOS:                                                  0311
Highest Rank:                                       

Proficiency/Conduct marks (# of occasions):               4.0 (5) / 3.8(5)

Awards and Decorations (as listed on the DD Form 214):   SEA SERVICE DEPLOYMENT RIBBON, GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL, NATIONAL DEFENSE SERVICE MEDAL




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

20021011:        Applicant enlists under a drug waiver.   

20040218 :         NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 20040213 , tested positive for ( THC ) .
20040508:        Summary Court-Martial.
         Charge: Violation of the UCMJ, Article 112A.
         Specification: Did on or about Feb 2004, wrongfully use marijuana .
          Finding: To Charge and the specification there under, guilty.
          Sentence: Reduction to E-2, 30 days hard labor without confinement.
         CA action 20040508: Sentence approved and ordered executed.
20040526 :        Counseling: Advised of deficiencies in performance and conduct ( Drug abuse ), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action due to drug abuse.

20040802:        Applicant refuses Medical Officer’s evaluation for drug abuse at Consolidated Substance Abuse Counseling Center, Camp Pendleton, CA.


Elements of Discharge: [ IN VOLUNTARY]

Date Notified:                                       20040526
Basis for Discharge:                                DUE TO

Least Favorable Characterization:                         
Commanding Officer’s Intended Recommendation:   
Record Supports Narrative Reason:                          YES

Date Applicant Responded to Notification:                 20040526
Rights Elected at Notification:
 Consult with Counsel                               
Obtain Copies                                      
Submit Statement(s) (date)                                  ( 20040525 )
Administrative Board                               

Commanding Officer Recommendation (date):        ( 20040612 )
 SJA review (date):                                  ( 20040812 )
 Separation Authority (date):               COMMANDER, MARINE CORPS BASE, CAMP PENDLETON ( 20040816 )
 Narrative Reason directed:                                  MISCONDUCT DUE TO
Characterization directed:                                 
Date Applicant Discharged:                         20040830


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 :                                          0      
         Health /Medical :                                       0      
         Character Statements:                               2      
         Criminal Records Checks:                                    0      
         Additional Statements from Applicant:             0      
Other Documentation (Describe Below)                      3      

Total Number of Pages:                              6

D escription of Other Documentation:
        Fax Cover Sheet from K_ B_ d ated August 24, 2006,
Letter in Support from K_ A. B_, Santa Cruz County Veterans Service Officer, dated April 3, 2006,
Letter from P_ B_, M.A. , Santa Cruz County Readjustment Counseling Therapist , dated January 11, 2005 .
        

Applicant’s Issues, as summarized by the Board:
 1. To be able to access Veterans Administration benefits.
2. Unfair discharge characterization due to record of service.
 3. 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 page one of the Addendum regarding this issue.

Decisional Issues:
 The Board accepted Issues 2-3 for consideration.

Issue 2 (Equity). 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 did not dispute 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 guilty findings at a Summary Court Martial 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. Relief denied.

Issue 3 (Equity). 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 no documentation of post-service accomplishments. The Applicant's efforts need to be more encompassing . 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.

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
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.

Employmen t / 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

Similar Decisions

  • USMC | DRB | 2008_Marine | MD0800931

    Original file (MD0800931.rtf) Auto-classification: Denied

    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 conduct mitigates the reason for the characterization of discharge. ” 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...

  • NAVY | DRB | 2003_Navy | ND03-01320

    Original file (ND03-01320.rtf) Auto-classification: Denied

    Decision A documentary discharge review was conducted in Washington, D.C. on 20040526. “My name is T_ S_ F_ (Applicant). I was discharged out of the Navy with an Other Than Honorable discharge, because I failed.

  • USMC | DRB | 2007_Marine | MD0700506

    Original file (MD0700506.rtf) Auto-classification: Denied

    Recommendation on Separation: BY Recommendation on Characterization: BY Commanding Officer Recommendation (date): (20030401)SJA review (date): (20030711) Separation Authority (date): COMMANDING GENERAL, 3D MARINE DIVISION (20030715) Basis for discharge directed: DUE TO: Characterization directed: Date Applicant Discharged: 2030729 Types of Documents Submitted by Applicant and Considered By BoardRelated to Military Service: Service and/or Medical Record:Other Records: Related to Post-Service...

  • NAVY | DRB | 2006_Navy | ND0601053

    Original file (ND0601053.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. Character, Narrative Reason, and Authority of Discharge (at time of issuance):UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Drug abuse (Use), authority: MILPERSMAN, Article 3630620. The Applicant was properly processed for separation for his illegal drug use.

  • NAVY | DRB | 2006_Navy | ND0600793

    Original file (ND0600793.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. Character, Narrative Reason, and Authority of Discharge (at time of issuance):GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT (DRUG ABUSE), authority: MILPERSMAN, Article 1910-146, formerly 3630620. The Applicant requests upgrade in order to obtain educational benefits and because he needs a better job to “support” his “family.” The Veterans Administration determines...

  • NAVY | DRB | 2006_Navy | ND0600511

    Original file (ND0600511.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). May God bless you and thanks in advance for your help.” Documentation In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:Applicant’s DD Form 214 (Service - 7) PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Inactive:...

  • USMC | DRB | 2013_Marine | MD1301444

    Original file (MD1301444.rtf) Auto-classification: Denied

    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. ” 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. Reenlistment/RE-code : Since the NDRB has no jurisdiction...

  • NAVY | DRB | 2006_Navy | ND0600425

    Original file (ND0600425.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. Admitted to marijuana usage before he joined the military, states he told the recruiter at personnel at MEPS.010720: NJP for violation of UCMJ, Article 86: In that AA J_ W. B_ (Applicant), U.S. Navy, on active duty, did, on or about 0650, 010701, without authority, absent himself from his unit, to wit: USS NASSAU located at Norfolk, Virginia and did remain so absent...

  • USMC | DRB | 2003_Marine | MD03-01333

    Original file (MD03-01333.rtf) Auto-classification: Denied

    MD03-01333 Applicant’s Request The application for discharge review was received on 20030805. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. 000814: Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.010123: Applicant notified of intended recommendation for discharge under other than honorable...

  • NAVY | DRB | 2005_Navy | ND0500959

    Original file (ND0500959.rtf) Auto-classification: Denied

    Documentation In addition to the service record, the following additional documentation, submitted by the Applicant, was considered: Only the service record was reviewed. As of this time, the Applicant has not provided any post-service documentation for the Board to consider. The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.