Upgrade.Vet

USMC | DRB | 2007_Marine | MD0700065

Original file (MD0700065.rtf) Auto-classification: Denied

ex-, USMC
MD07-00065

Current Discharge and Applicant’s Request:

Application Received:                               20 061017
         Characterization of Service:
         Basis for Discharge :
         Discharge Authority :                       MARCORSEPMAN PAR 6210.5
         Duty Assignment/ Command at Discharge:    HQBN, MCLB BARSTOW CA 92311

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

Issues:          1 . Inequitable Discharg e
         2. Post Service

Issue 1. (Equity) 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 and improperly discharge . 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 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. Relief Denied.

Issue 2 (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, good conduct, or favorable endorsements 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 three character statements and one document of employment. 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 continuing educational pursuits, documentation of community service, and certification of non-involvement with civil authorities. The Board determined that the documentation provided by the Applicant did not mitigate the circumstances 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.


Decision:

Date of Decision:                                            20070823
Location of Board:                                  Washington D.C.
Complete Service Record:                                    NO
Complete Medical Record:                           YES
Complete Discharge Package:                         NO

Regarding propriety, the Board found the discharge:
Regarding equity, the Board found the discharge:

By a vote of the Characterization shal l .
By a vote of the Basis for Discharge shall due to .

Summary of Service:

Prior Service:
Inactive: USMCR (DEP)                               19950629 - 19950723

Period of Service Under Review:
Date of Enlistment:                                 19950724
Years Contracted :
Date of Discharge:                                  19970711
Length of Service
         Active:                                     01 Yrs 11 Mths 17 D ys (does not exclude lost time)
         Inactive:                                            NONE
         Time Lost During This Period:             Days UA: Days Confinement:

Education Level:
Age at this Enlistment:
AFQT:                                                 65
MOS:                                                  0151
Highest Rank:
Proficiency/Conduct marks (# of occasions):               4.6 ( 5 ) / 4.1 ( 5 )

Awards and Decorations (as listed on the DD Form 214): NATIONAL DEFENSE SERVICE MEDAL, CERTIFICATE OF COMMENDATION, CERTIFICATE OF APPRECIATION

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

19950628 :        Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs

19970708:        Certification that Applicant consulted with counsel for pending NJP, violation of Article 112a and 134 of the UCMJ. Applicant also certified that acceptance of NJP did not preclude the command from taking other adverse administrative action .

19970708 :        NJP for violation(s) of UCMJ:
         Article 112a: Wrongfully used, possessed, and introduced an unknown quantity of marijuana onto a military installation.
         Article 134: Wrongfully and unlawfully subscribe under lawful oath, false statement in the follow: that he LCPL T_ P. D_ had not engaged in the use or possession of controlled substances and had not observed others engaged in the use or possession of controlled substance, which statement he did not then believe to be true. In that he, LCPL T_ P. D_ had never purchased marijuana for his personal use and had no know ledge of LCPL C_ R. J_ purchasing marijuana, which statement he did not then believe to be true.
         Award: Forfeiture of $500.00 for 1 month, restriction for 30 days, reduction to E-2.
         Not appealed.

19970710:        Counseling: Advised of deficiencies in performance and conduct (Recent violation of the UCMJ which resulted in NJP proceedings), advised of being recommended for administrative discharge action.

Elements of Discharge: [INVOLUNTARY]

Date Notified:                                       NOT FOUND IN RE CORD
Basis for Discharge:

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:
         Characterization directed:
Date Applicant Discharged:                         19970711

Additional Documents Submitted by Applicant and Considered By Board

Total Number of Pages:                               4

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 P1900.16E), effective 31 Jan 97 until 31 August 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 and introduction of a Controlled Substance; Article 134, False Swearing.

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

Similar Decisions

USMC | DRB | 2011_Marine | MD1100434

Original file (MD1100434.rtf) Auto-classification: Denied

There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving Naval Service.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and special court-martial record of trial, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain.The Applicant remains...
NAVY | DRB | 2009_Navy | ND0901511

Original file (ND0901511.rtf) Auto-classification: Denied

Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entriesand discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. ”...
USMC | DRB | 2012_Marine | MD1201038

Original file (MD1201038.rtf) Auto-classification: Denied

Types of Documents Submitted/reviewedRelated to Military Service: DD 214:Service/Medical Record:Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Rehabilitation/Treatment: Criminal Records: Personal Documentation: Community Service: References: Department of VA letter: Other Documentation: Additional Statements:From Applicant: From/To Representation:From/ToCongress member: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD...
NAVY | DRB | 2011_Navy | ND1100732

Original file (ND1100732.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and the evidence submitted at the personal hearing, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall change to.The NDRB will recommend to the Commander, Navy Personnel...
NAVY | DRB | 2013_Navy | ND1301094

Original file (ND1301094.rtf) Auto-classification: Denied

When notified of administrative separation processing using the procedure, the Applicant rights to consult with a qualified counsel and request an administrative board, which found by a vote of 3-0 that the evidence supported misconduct due to drug use, 3-0 for separation, and 3-0 for a General (Under Honorable Conditions) characterization of service. Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entriesand...
USMC | DRB | 2007_Marine | MD0700427

Original file (MD0700427.rtf) Auto-classification: Denied

Discussion Issue(s) 1 - 2: either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. 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): COMMANDING GENERAL, 4 TH MARINE DIVISION (20041209) Basis for discharge...
USMC | DRB | 2007_Marine | MD0701060

Original file (MD0701060.rtf) Auto-classification: Denied

Recommendation: Administrative separate due to fraudulent enlistment. 19970627 Rights Elected at Notification: Consult with Counsel Obtain Copies of Documents Submit Statement(s) (date) Administrative Board Commanding Officer Recommendation (date): (UNDATED) SJA review (date): Separation Authority (date): COMMANDING GENERAL, MARINE CORPS RECRUIT DEPOT (0) Basis for discharge directed: DUE TO: Characterization directed: Date Applicant Discharged: 19970711 Types of Documents Submitted by...
USMC | DRB | 2009_Marine | MD0902089

Original file (MD0902089.rtf) Auto-classification: Denied

The Applicant believes her discharge was inequitable based on her record of service.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.After a thorough review of the Applicant’s service record, it appears to the NDRB that her command recommended that she be separated from the Marine Corps, but also recommended that the separation be suspended for 12 months. ”...
NAVY | DRB | 2011_Navy | ND1101354

Original file (ND1101354.rtf) Auto-classification: Denied

It also included one summary court-martial for violations of the UCMJ: Article 86 (Absence without leave, 2 specifications).Based on the offenses committed by the Applicant, command administratively processed for separation. Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for...
USMC | DRB | 2014_Marine | MD1400137

Original file (MD1400137.rtf) Auto-classification: Denied

The Applicant’s service record documents a punitive conviction and punishment, as adjudged by a Special Court-Martial, on 08 May 2007. ” 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. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.

Search Decisions

Decision Text

USMC | DRB | 2007_Marine | MD0700065

Similar Decisions