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USMC | DRB | 2007_Marine | MD0700303
Original file (MD0700303.rtf) Auto-classification: Denied
ex-, USMC
MD07-00303
Current Discharge and Applicant’s Request
Application Received: 20070103   Characterization Received:
Narrative Reason: MISCONDUCT              Authority: MARCORSEPMAN 6210.5

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. VA Benefits
                           2. Unfair Discharge

Decision

 By a vote of the Characterization shall .     
By a vote of the Narrative Reason shall MISCONDUCT

Date: 20 071011                                             Location: Washington D.C.

Discussion

 Issue 1: 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. The Applicant is directed to the Addendum regarding .

Issue 2: ( ). The Applicant implies that his positive urinalysis for drugs (THC) was a result of his wife tainting his food, and that he was unaware she did so at the time. 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 drugged. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. A general (under 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 conduct during the current period of service, which forms the primary basis for determining the character of his service was marred by the award of three retention warnings and one nonjudicial punishments (NJP) for violations of the Uniform Code of Military Justice (UCMJ), Article 112a (Wrongful use of controlled substance) . Violations of UCMJ Articles 112a is considered serious offense 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, Medical and Service Record Entries , Discharge Process and evidence submitted by the Applicant, t he Board found that


Summary of Service

 Prior Service:
 Inactive: USMCR (DEP)     20011218 - 20020721              Active:
Period of Service Under Review:
 Date of Enlistment: 20020722               Years Contracted :        Date of Discharge: 20050831
Length of Service : 03 Yrs 01 Mths 10 D ys          Lost Time : Days UA: Days Confine d :
Education Level:         Age at Enlistment:       AFQT: 33          MOS: 3521 Highest Rank:
Proficiency/Conduct marks (# of occasions):      N/A / N/A   Fitness reports :
Awards and Decorations ( per DD 214): MARINE CORPS GOOD CONDUCT MEDAL, SEA SERVICE DEPLOYMENT RIBBON, GLOBAL WAR ON TERRORISM SERVICE MEDAL, GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL (IRAQ), NATIONAL DEFENSE SERVICE MEDAL, RIFLE QUALIFICATION BADGE (MARKSMAN)

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

 200 11218 :        Applicant acknowledged understanding the Marine Corps’ policy on illegal use of drugs.

20040812:        MARCORSEPMAN 6105 counseling for non recommendation for promotion for the month of September 2004 because you failed to maintain proper physical standards. Specifically, you could not do the minimum required pull-ups. Your lack of initiative to maintain standards is not acceptable behavior and conduct for a United States Marine .
20050523:        MARCORSEPMAN 6105 counseling for failed to follow instruction given to you by your platoon and company leadership by receiving a speeding ticket. This offense occurred on Camp Lejeune, NC on 20050519. The command was made aware of this offense through a daily blotter entry made by PMO. The offense you were sited for was speeding, 49 MPH in a 35 MPH zone. This indicates a severe lack of integrity, judgment, common sense, and specifically a failure to follow instruction given to you by your chain of command. All direct violations of the UCMJ and violations of the Core Values that all Marines should take pride in.

20050721 :         NAVDRUGLAB, San Diego, CA, or Jacksonville, FL, reported Applicant’s urine sample, received YYYYMMDD, tested positive for (WHAT).
20050727:        MARCORSEPMAN 6105 counseling for violation of Article 112a, for illegal drug involvement (usage of THC) identified through urinalysis confirmed by NAVDRUGLAB JAXFL msg R2117297Z Jul 05 .
20050728:        NJP -- Viol UCMJ Art. 112a - Wrongfully us e marijuana .
         Awarded - FOP ($ 692.00 ) for ( 2 months); RIR ( E-2 ); Restr for ( 45 days); Extra duties ( 45 days).
20050728:        Applicant acknowledged sobriety letter which explained not to consume alcohol or use and illicit substances for the duration of his treatment.

 20050802:        Applicant acknowledged Statement of Understanding for substance abuse at a Veterans Administration Medical Center.

20050811:        Applicant refused screening/treatment for substance abuse.

Discharge Process

 Date Notified:   20050801
Basis for Discharge:      DUE TO:
Least Favorable Characterization:       
Commanding Officer’s Intended Recommendation:   

Date Applicant Responded to Notification:                  20050728
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         Administrative Board                      

Commanding Officer Recommendation (date):        ( 20050801 )
SJA review (date):       ( 20050818 )
Separation Authority (date):     COMMANDING GENERAL, 2D MARINE DIVISION (REAR), II MARINE EXPEDITIONARY FORCE ( 20050818 )
 Basis for discharge directed:   DUE TO:
Characterization directed:     
Date Applicant Discharged:       20050831

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 1 Sep tember 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 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, 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 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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