Upgrade.Vet

USMC | DRB | 2007_Marine | MD0700015

Original file (MD0700015.rtf) Auto-classification: Denied

FOR
ex-PFC, USMC
MD07-00015

Current Discharge and Applicant’s Request:

Application Received:                               20 060926
Characterization of Service:
Narrative Reason for Separation:         MISCONDUCT
Discharge Authority :              MARCORSEPMAN 6210.5
Last Duty Assignment/ Command at Discharge:       mals-31, 2dmaw, mcas beaufort, sc

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

Applicant’s Issues:
1. Reenlistment
2. Unfair characterization based on r ecord of service.
3. Post service.
Decision:

By a vote of 5-0 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS .
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT .

Date of Decision:                                            200708 16
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

Issue 1: T he Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum regarding reenlistment issues .

Issue 2 (Equity): The Applicant contends that the characterization of his discharge was unfair because he had no instances of misconduct prior to the illegal drug involvement for which he was ultimately discharged. T here is credible evidence in the record that the Applicant used illegal drugs. Mandatory processing for separation i s required for Marines who abuse illegal drugs , and s eparation under these conditions generally results in characterization of service under other than honorable conditions. The 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 as 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) for violation of the Uniform Code of Military Justice (UCMJ) , Article 112a , Wrongful use, possession, etc of controlled substances . Violation of Article 112a is considered a serious offense for which a punitive discharge is authorized if adjudged by a Special or General Court - Martial. An upgrade of characterization to under honorable conditions would therefore be inappropriate in this case .
Issue 3 (Equity): The NDRB is authorized to consider post-service factors in deciding whether to re -characterize a discharge. However, there is no law or regulation providing that an unfavorable discharge may be upgraded based solely on the passage of time, good conduct, or favorable endorsements in the civilian life subsequent to leaving the service. Ordinarily, the NDRB must find that a procedural impropriety or inequity existed during the period of enlistment in question before it can grant relief . Outstanding post-service conduct is considered by the NDRB 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. The Applicant provided a very short and general statement on his DD Form 293 (application) regarding his continuous employment, good credit, and abiding by the law , but no other supporting documentation. The Applicant's efforts need to be more encompassing. For example, the Applicant could have produced evidence of a verifiable and continuous employment record , evidence of being drug free, and documentation of community service. The Board determined that the documentation provided by the Applicant did not mitigate the circumstances 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)                               20010525-20020113
Active:

Period of Service Under Review:
Date of Enlistment:                                 20020114
Years Contracted :                                   5
Date of Discharge:                                  200 40914
Length of Service
         Active:                                     02 Yrs 0 8 Mths 01 D ys (Does not exclude lost time)

Time Lost During This Period:
Education Level:
Age at this Enlistment:                                     17 (Parental Consent)
AFQT:                                                 5 3
MOS:                                                  6072
Highest Rank:
Proficiency/Conduct marks (# of occasions):               4.3/4.2

Awards and Decorations (as listed on the DD Form 214):   RIFLE MARKSMAN MARKSMANSHIP BADGE , SEA SERVICE DEPLOYMENT RIBBON, NATIONAL DEFENSE SERVICE MEDAL

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

20010523:        Applicant signs Statement of Understanding regarding Marine Corps policy on illegal drugs.

20020401:        Applicant completed drug lecture training

20040121:        Navy Drug Lab, Jax, FL reported Applicant’s urine sample taken 20040114 as pos for cocaine.

20040323:        NJP for vio Art 112a, UCMJ; awarded Forfeit $558x 2 months, restr+extra duty x45days, reduction to E-2; not appealed

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

20010525:        Applicant admitted on medical exam, DD Form 2807-1, to using marijuana 150-200 times in 1999-2000.
Elements of Discharge: [INVOLUNTARY]

Date Notified:                                       20040412
Basis for Discharge:     due to:
Least Favorable Characterization:
Commanding Officer’s Intended Recommendation:
Date Applicant Responded to Notification:                 20040414
Rights Elected at Notification:
         Consult with Counsel
         Obtain Copies of Documents
         Submit Statement(s) (date)
         Administrative Board
Commanding Officer Recommendation (date):        ( 20040511 )
SJA review (date):                                  SUFFICIENT IN LAW AND FACT (20040520)
Separation Authority (date):     COMMANDING GENERAL, 1 ^ST MARINE AIR WING ( 200 40521 )
Narrative Reason directed:                due to:
Characterization directed:
Date Applicant Discharged:                         20040914

Additional Information Considered by Board

        Document Type                                        #Pages
Related to Period of Service Under Review :
         Service/Medical Record :                            265
         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:                            265

Pertinent Regulation/Law

A. Paragraph 6210.5 , Drug Abuse , Marine Corps Separation and Retirement Manual, (MCO P1900.16F ), effective 30 May 2001 .

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 me mbers 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 | 2007_Marine | MD0700015

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