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USMC | DRB | 2007_Marine | MD0700169
Original file (MD0700169.rtf) Auto-classification: Denied
ex-PVT, USMC
MD07-00169
Current Discharge and Applicant’s Request
Application Received: 20061117   Characterization Received:
Narrative Reason: MISCONDUCT              Authority: MARCORSEPMAN 6210.5

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:

Applicant’s Issues:       1. Admin Discharge board was improper and prejudicial. Representative: Civilian Counsel
                           2 . Unfairly treated by command during third NJP.
3 . Characterization of service too harsh.
                           4. 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: 200709 12      Location: Washington D.C. The Board found that

Discussion

Issue (s) 1 -2 ( Propriety/ Equity). The Applicant implies that he was prejudiced by the administrative discharge board and unfairly treated at his third NJP. 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 the command unfairly singled him out or treated him with any prejudice during any administrative proceedings. In fact, the NDRB noted the amount of due process and administrative care that he did receive from the date of the drug lab message (20040917) until his final discharge (20050706). The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.

Issue 3 (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. 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. 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 three nonjudicial punishment for a violation s of UCMJ Article (s) 92, Failure to obey order, regulation, 107, False official statements, 112a , Wrongfu l use of a controlled substance, and 134, Incapacitating oneself for performance of duties. V iolation (s) of Article (s) 92, 107, and 112a are considered serious offense s for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial. An upgrade to general (under honorable conditions) would be inappropriate .
Issue 4 (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 character statements 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.


Summary of Service

Prior Service:
 Inactive: USMCR (DEP)     20031010 - 20040531             
Period of Service Under Review:
 Date of Enlistment: 20040601      Years Contracted : 4 ; Extension:         Date of Discharge: 20050706
Length of Service : 1 Yr 1 Mth 06 D ys      Lost Time : Days UA: Days Confine d :
Education Level: 12       Age at Enlistment: 1 8     AFQT: 35          MOS: 9900 Highest Rank: PFC
Proficiency/Conduct marks (# of occasions):      3.6 ( 2 ) / 3.6 ( 2 )    
Awards and Decorations ( per DD 214): MARKSMAN RIFLE BADGE, NATIONAL DEFENSE SERVICE MEDAL

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

 UNDATED:         A pplicant received drug waiver for THC use x 9.

20030819:        A pplicant signed Marine Corps policy concerning illegal use of drugs.

 200 31020:        A pplicant failed MEPS urinalysis testing positive for THC. Disqualified from entry for 45 days.

20040917:        NAVDRUGLAB, Jacksonville, Florida, reported Applicant’s urine sample, received 20040910, tested positive for cocaine.

20040923:        CO's NJP -- Viol UCMJ Art. 112a – Use of a controlled substance. Awarded – Reduction to E-1,FOP $596 for 2 months; and Restr for 60 days .

200409 28 :        Commanding Officer, Headquarters and Service Battalion, School of Infantry request s suspension of recommendation for under other than honorable conditions discharge contingent upon Applicant’s completion of training at Marine Corps Training B attalion without encountering any other legal problems.

20041004:        Commanding Officer, School of Infantry recommends disapproval of the Battalion Commanders request for suspended discharge.

20041129:        Applicant waives his rights to an administrative discharge board contingent on re ceiving a suspended discharge from the Commanding General.

20041206:        Commanding General disapproval of Applicant’s request.

200501 18 :        Applicant admitted to Intensive Care Unit for ingesting four bottles of Robitussin and 16 cold tablets. Applicant denied suicidal gesture, admitted overdose from recreational use. [Extracted from CO, SOI ltr ]

20050121 :        CO's NJP -- Viol UCMJ Art. 134 – Incapacitation for the performance of duty as a result of previous indulgence in intoxicating cough medication and cold pills. Awarded – FOP $617 for 2 months; and Restr for 60 day s .
20050419:        CO's NJP -- Viol UCMJ Art. 92 - Failure to obey a lawful order (underage drinking) and 107 - F alse official statements. Awarded - - FOP ($288) for (1 months); Restr and Extra duties for 14 days.
20050602 :        Applicant notified of inten t to request vacation of suspended administrative separation. Advised that he has the right to consult with qualified counsel and the right to submit a statement in writing to the Commanding General.

20050602:        Applicant acknowledged rights to be exercised during request to vacate suspended administrative separation proceedings.
20050602:        Commanding Officer, Headquarters and Service Battalion requested vacation of the Applicant’s suspended discharge.

20050609:        Applicant ordered home on voluntary leave status.


Discharge Process

 Date Notified:   20040928
Basis for Discharge:      DUE TO
        
Least Favorable Characterization:       
Commanding Officer’s Intended Recommendation:   

Date Applicant Responded to Notification:                  2004092 8
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                         ( NOT FOUND IN RECORD )
         Administrative Board                      

Administrative Board Date :       20041207
Findings, by preponderance of the evidence:     BY DUE TO .
         BY SEPARATION WARRANTED.
Recommendation on Separation:   BY
Recommendation on Characterization:     BY

Commanding Officer Recommendation (date):        -SUSPENDED ( 200 40928)
                   (200 50217)
SJA review (date):       ( 20050 2 28 )
 Separation Authority (date):     CG, MARINE CORPS BASE, CAMP LEJEUNE (20050304)
Basis for discharge directed:   DUE TO
Characterization directed:      SUSPENDED -

Commanding Officer Recommendation (date):        (200506 02 )
SJA review (date):       (20050621)
 Separation Authority (date):     CG, MARINE CORPS BASE, CAMP LEJEUNE ( 2005062 4 )
Basis for discharge directed:   DUE TO:
Characterization directed:     
Date Applicant Discharged:       20050706



Types of Documents Submitted by Applicant and Considered By Board

 Related to Military Service:      Service and/or Medical Record:            Other Records:

Related to Post-Service Period:         
         Employment:                        Finances:                          Education:               
         Health/Medical Records:                   Substance Abuse:                           Criminal Records:       
         Family/Personal Status:                   Community Service:                References:              
        
Additional Statements From Applicant:    From Representative:
Other Documentation (Describe)      


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 (s) 92, 107, and 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 to the Joint Service Review Activity , OUSD (P&R) PI-LP , The Pentagon , Washington, DC 20301-4000 . 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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