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USMC | DRB | 2007_Marine | MD0700041

Original file (MD0700041.rtf) Auto-classification: Denied

ex-, USMC
MD07-00041

Current Discharge and Applicant’s Request :

Application Received:                               20 061004
         Characterization of Service:              OTHER THAN HONORABLE
         Basis for Discharge :                       -DRUG ABUSE (WITH ADMINISTRATIVE BOARD)
         Discharge Authority :                       MARCORSEPMAN 6210.5
         Duty Assignment/ Command at Discharge:    MCSF co ROTA SPAIN

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

Issues (as summarized by NDRB) :
1. Inequitable punishment for offense.
2. Record of service.
3. Post service.

Decision:

By a vote of the Characterization shall UNDER OTHER THAN HONORABLE CONDITIONS
By a vote of the Narrative Reason shall INVOL DIS (BOARD) (MISCONDUCT) DRUG ABUSE

Date of Decision:                                            200708 30
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 (Equity). The Applicant implies that his punishment was inequitable as to the offense. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was wrongfully charged and disciplined. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.

Issue 2 (Equity). When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. A 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. C ertain 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 one retention warning, one nonjudicial punishment for Article s 117, 128, and 134 , and a guilty finding and sentence at a Special Court-Martial for Article s 128 and 134 . V iolation s of the Uniform Code of Military Justice (UCMJ), Article s 128 and 134 are considered serious offense s for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial. An upgrade to honorable would be inappropriate .

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 one character reference letter as documentation of post-service accomplishments. The Applicant's efforts need to be more encompassing. For example, the Applicant could have produced evidence of a verifiable employment record, documentation of community service, educational pursuits, evidence of a 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)                               19900927 - 19910417
Active:

Period of Service Under Review:
Date of Enlistment:                                 19910418
Years Contracted :                                   ; Extension:
Date of Discharge:                                  19950120
Length of Service
         Active:                                     03 Yrs 0 9 Mths 0 2 D ys (does not exclude lost time)
Time Lost During This Period:                       0 Days
UA:
Days Confinement:                                   UNABLE TO DETERMINE SEE DD FORM 214 BLOCK 29

Education Level:
Age at this Enlistment:                                     20
AFQT:                                                 56
MOS:                                                  0311
Highest Rank:
Proficiency/Conduct marks (# of occasions):               3.9 ( 9 ) / 3.8 ( 9 )

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

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

19900926:        Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs

19921120 :        NJP for violation(s) of UCMJ:
         Article 117 : Wrongfully use provoking words towards E-5 B_.
         Article 128 : Did on or about 19920928 through 19921002, did verbally assault a civilian .
         Article 134: Did on or about 19920928 through 19921002, did communicate a threat toward another individual.
         Award: Forfeiture of $ 1 00.00 for 2 months, restriction for 45 days, reduction to E- 2 (suspended for 4 months) .
         Not appealed.

19930427 :        Counseling: Advised of deficiencies in performance and conduct c oncerning alcohol related incident . Due to excessive consumption of alcohol an incident injured a fellow Marine . S ources of assistance provided.

19930604:        Special. Court-Martial.
         Charge I: Violation of the UCMJ, Article 81.
         Specification: Conspired to haze new Marines on or about 19930426 at MCSFCo, Naples Italy . Plea : Not Guilty. Findings : Withdrawn.
         Charge II: Violation of the UCMJ, Article 90.
         Specification: Disobeyed a lawful order against hazing new Marines on or about 19930426, at MCSFCo, Naples Italy. Plea: Not Guilty. Findings: Withdrawn.
        Charge III: Violation of the UCMJ, Article 128 (2 specs).
         Specification 1: Physically assaulted PFC C_ on or about 19930426, at MCSFCo, Naples Italy. Plea: Guilty. Findings: Guilty.
        Specification 2: Physically assaulted LCPL R_ on or about 19930426, at MCSFCo, Naples Italy.: Plea:
        Guilty. Findings: Guilty.
        Specification 3: Physically assaulted LCPL L_ on or about 19930426, at MCSFCo, Naples Italy. Plea:
        Guilty. Findings: Guilty.
        Charge IV: Violation of the UCMJ, Article 134 (2 specs).
        Specification 1: Was drunk and disorderly on or about 19930426 at MCSFCo, Naples Italy. Plea: Guilty. Findings: Guilty.
        Specification 2: Communicated a physical threat to LCPL L_ on or about 19930426, at MCSFCo, Naples Italy. Plea: Not Guilty. Findings: Withdrawn.
        Sentence: To be confined for 3 months, letter of reprimand, reduction to E-2.
         CA action 19930604: Sentence approved and ordered executed.

19930612:        Applicant transferred to US Naval Station Brig Rota Spain.

19940510:        Counseling: Advised of deficiencies in performance and conduct, frequent involvement with civilian authorities bringing discredit to the armed services. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

Elements of Discharge: [INVOLUNTARY]

Date Notified:                                       NOT FOUND IN RECORD
Basis for Discharge:     NOT FOUND IN RECORD

Least Favorable Characterization:
Commanding Officer’s Intended Recommendation:

Date Applicant Responded to Notification:                 NOT FOUND IN RECORD
Rights Elected at Notification:
Consult with Counsel
         Obtain Copies of Documents
         Submit Statement(s) (date)
         Administrative Board

Commanding Officer Recommendation (date):
SJA review (date):
Separation Authority (date):     NOT FOUND IN RECORD
         Basis for discharge directed:             NOT FOUND IN RECORD
         Characterization directed:
Date Applicant Discharged:                         19950120

Additional Documents Submitted by Applicant and Considered By Board

Total Number of Pages:                               3

Related to Period of Service Under Review:
         From Service and/or Medical Record:               Other Records:

Related to Other Period(s) of Service:
         From Service and/or Medical Record:               Other Records:

Related to Post-Service Period:
         Employment:                                          Finances:
         Health/Medical Records:                            Substance Abuse:
         Family/Personal Status:                            Education:
        Community Service Efforts:                         References:
         Criminal Records:

Other:
         Additional Statements From Applicant:             From Representative:
        Other Documentation (Describe)

Pertinent Regulation/Law

A. Paragraph 6210, Misconduct , of the Marine Corps Separation and Retirement Manual, ( MCO P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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 128 AND 134.

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, provi ded 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 grante d 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 | 2007_Marine | MD0700041

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