Upgrade.Vet

USMC | DRB | 2007_Marine | MD0700042

Original file (MD0700042.rtf) Auto-classification: Denied

ex-, USMC
MD07-00042

Current Discharge and Applicant’s Request:

Application Received:                               20 060822
         Characterization of Service:
         Basis for Discharge :
         Discharge Authority :                       MARCORSEPMAN 6210.3
         Duty Assignment/ Command at Discharge:    SAC Co, h&s bn, soi, campen ca

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

Issues (as summarized by NDRB) :
1. Reenlistment opportunity.
2 Personal problems during service.
3. Immaturity at time of offense.

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:                                            20 070830
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: The Board determined that th is I ssue is not an i ssue 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.

Issue 2 (Equity). T he Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service. 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. The Applicant contends that h is personal problems were attributed to h is immaturity and stress . While he may feel that this was the underlying cause of the misconduct, the record clearly reflects willful misconduct and demonstrated being unfit for further service. There is credible evidence in the record that the Applicant used illegal drugs. The evidence of record does not demonstrate that the Applicant was not responsible for h is conduct or that he should not be held accountable for h is actions.

Issue 3 (Equity). T he Applicant contends that h is problems were attributed to immaturity. While he may feel that this was the underlying cause of misconduct, the record clearly reflects willful misconduct and demonstrated he was unfit for further service. T he evidence of record does not demonstrate that the Applicant was not responsible for h is conduct or that he should not be held accountable for h is actions. 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 and two nonjudicial punishment for Articles 86 and 112a. V iolation s of the Uniform Code of Military Justice (UCMJ), Article 86, Unauthorized absence over 30 days and Article 112a, Wrongful use of a controlled substance is considered a 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 .

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)                               20040303 - 20040502
Active:

Period of Service Under Review:
Date of Enlistment:                                 20040503
Years Contracted :                                   ; Extension:
Date of Discharge:                                  20050506
Length of Service
         Active:                                     1 Yrs 0 0 Mths 0 4 D ys (does not exclude lost time)
         Time Lost During This Period:             193
Days UA:                                    18 6
Days Confinement:

Education Level:
Age at this Enlistment:
AFQT:                                                 56
MOS:                                                  9971
Highest Rank:
Proficiency/Conduct marks (# of occasions):               2.3 ( 4 ) / 1.6 ( 4 )

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

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

20040825 :         NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 20040820 , tested positive for ( THC ) .

20040903 :        Counseling: Advised of deficiencies in performance and conduct I llegal drug involvement , 216 ng THC . N ecessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.

2005020 8 :        NJP for violation(s) of UCMJ:
         Article 86: UA from on or about 1800, 20040912 until 1100, 20050128.
         Article 112a: Wrongfully use a controlled substance, to wit: THC .
         Award: Forfeiture of $ 617 .00 for 2 months, restriction and extra duty for 45 days, reduction to E- 1 .
         Not appealed.

20050208 :        Counseling: Advised of deficiencies in performance and conduct v iolation of Art icles 112a and 86 . N ecessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

20050 415 :        NJP for violation(s) of UCMJ:
         Article 86: UA from on or about 200 50216 until 20050 410 .
         Award: Forfeiture of $617.00 for 2 months, restriction and extra duty for 45 days.
         Not appealed.

20050415:        Counseling: Advised of deficiencies in performance and conduct v iolation of Art icle 86 of the UCMJ . N ecessary corrective actions explained, sources of assistance provided.

20050425:        Applicant refused Medical Officer’s Evaluation.

Elements of Discharge: [INVOLUNTARY]

Date Notified:                                       20050425
Basis for Discharge:     DUE TO
         DUE TO
                                    DUE TO
Least Favorable Characterization:
Commanding Officer’s Intended Recommendation:

Date Applicant Responded to Notification:                 20050425
Rights Elected at Notification:
Consult with Counsel
         Obtain Copies of Documents
         Submit Statement(s) (date)
         Administrative Board

Commanding Officer Recommendation (date):        ( 2005042 5 )
SJA review (date):                                  ( 20050502 )
Separation Authority (date):     BASE COMMANDER CAMP PENDLETON ( 20050503 )
         Basis for discharge directed:             DUE TO
         Characterization directed:
Date Applicant Discharged:                         20050506

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 P1900.16F), effective 01 Sep 2001 until Present.

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.

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 | MD0700042

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