Upgrade.Vet

USMC | DRB | 2006_Marine | MD0601163

Original file (MD0601163.rtf) Auto-classification: Denied

ex-PVT, USMC
MD06-01163

Current Discharge and Applicant’s Request:

Application Received:                               20 060905
Characterization of Service:
Narrative Reason for Separation:
Discharge Authority :                                MARCORSEPMAN PAR 6210.5
Last Duty Assignment/ Command at Discharge:       2NDBN 5THMAR 1STMARDIV CAMPEN dleton CA

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

Applicant’s issues:
1. Veteran’s Administration benefits.
2. Reenlistment opportunities.
3. Employment opportunities.
4. Unfair discharge characterization due to record of service.
5. Misconduct caused by Post Traumatic Stress Disorder.
6. Post service.

Decision:

By a vote of the Characterization shall UNDER OTHER THAN HONORABLE CONDITIONS
By a vote of the Narrative Reason shall MISCONDUCT

Date of Decision:                                            20070 802
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

Issues 1-3: The Board determined that these Issues are not issues 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.

Issue 4 (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. Despite a Marine’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Naval service in order to maintain proper order and discipline. The Applicant’s service was marred by a conviction by Summary Court Martial of a 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.

Issue 5 (Equity). When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline. The NDRB generally does not consider the circumstances surrounding the Applicant’s stated condition, any implied incorrect diagnosis, nor the medical treatment given to the Applicant to be of sufficient nature to exculpate the Applicant’s misconduct. In fact, the NDRB sees no connection between the Applicant’s misconduct and his claimed medical condition.

Issue 6 (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.

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.

Summary of Service:

Prior Service:
Inactive: USMCR (DEP)                               20020109-20020206
Active:

Period of Service Under Review:
Date of Enlistment:                                 20020207
Years Contracted :                                   ; Extension:
Date of Discharge:                                  20040409
Length of Service
         Active:                                     02 Yrs 02 Mths 0 3 D ys (Does not exclude lost time)

Time Lost During This Period:                      24
Days UA:                                             N ONE
D ays Confinement:                                   24

Education Level:
Age at this Enlistment:
AFQT:                                                 66
MOS:                                                  0311
Highest Rank:

Proficiency/Conduct marks (# of occasions):               NOT FOUND IN RECORD

Awards and Decorations (as listed on the DD Form 214):   COMBAT ACTION RIBBON, SEA SERVICE DEPLOYMENT RIBBON, NAVY PRESIDENTIAL UNIT CITATION, MARKSMAN RIFLE BADGE

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

2002010 8 :        Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

20040106 :        Counseling: Advised of deficiencies in performance and conduct due to dr ug use . N ecessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.

20040126 :        Summary Court-Martial.
         Charge: V iolation of the UCMJ, Article 112a .
         Specification: Did, at an unknown location, on or about 20031202, wrongfully use 3, 4 methylenedioxymethaphetamine, a schedule I controlled substance .
         Finding: To Charge and the specification thereunder, guilty.
         Sentence: Not found in record. 24 days confinement [Extracted from the Camp Pendleton Brig release order]

20040219:        Released from Camp Pendleton Brig.

Medical Record Entries Related to Characterization of Service or Basis for Discharge

200 40107 :        Separations Medical Assessment screening: Combat stress group therapy offer but declined by Applicant.

200402 2 5:        Medical Officer’s Evaluation: Applicant refused substance abuse counseling.


Elements of Discharge: [INVOLUNTARY]

Date Notified:                                       20040109
Basis for Discharge:                                 DUE TO

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

Date Applicant Responded to Notification:                 20040109
Consult with Counsel
Obtain Copies
Submit Statement(s) (date)
Administrative Board                                WAIVED

Commanding Officer Recommendation (date):        ( 20040226 )
SJA review (date):                                  ( 20040322 )
Separation Authority (date):              COMMANDING GENERAL, MARINE CORP BASE, CAMP PENDLETON ( 20040330 )
Narrative Reason directed:                                  MISCONDUCT DUE TO
Characterization directed:
Date Applicant Discharged:                         20040409

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 :                            2 0
         Other Period of Service:
Related to Post-Service Period:
         Community Service :
         Education :                                           1
         Employment :
         Health /Medical :
         Character Statements:                               2
         Criminal Records Checks:
         Additional Statements from Applicant:             4
Other Documentation (Describe Below)                      6

Total Number of Pages:                            33

D escription of Other Documentation:
        Certification dated July 12, 2005
         Newsday article(4 pages)
         New York State Department of Veteran’s Affairs letter dated August 24, 2006.


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.

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

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USMC | DRB | 2006_Marine | MD0601163

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