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USMC | DRB | 2007_Marine | MD0700356
Original file (MD0700356.rtf) Auto-classification: Denied
ex-, USMC
MD07-00356
Current Discharge and Applicant’s Request
Application Received: 20070124 Characterization Received:
Narrative Reason: MISCONDUCT                                         Authority: MARCORSEPMAN 6210.5

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Drug use was an isolated incident
                           2. Use was caused by post-Iraq deployment stress; should have received counseling and rehabilitation

Decision

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

Date: 20 071101                             Location: Washington D.C.

Discussion

 Issue 2 ( ). The Applicant states his discharge was based on one isolated incident in “over 40 months of service.”
Despite a servicemember’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. 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. Further, the Applicant’s illegal drug use, a violation of Article 112a of the UCMJ, was not an isolated act of misconduct. T he Applicant’s service record is further marred by 2 NJP s for violations of Articles 86 and 107 of the UCMJ. An upgrade to honorable is not warranted.

Issue 3 ( ). The Applicant claims that his drug use was a result of the stress he felt subsequent to his deployment in support of Operation Iraqi Freedom. The Board noted that the Applicant MOS was administration, not combat arms; that the Applicant’s deployment was to Kuwait, not Iraq; and that the Applicant did not have a Combat Action Ribbon. Further, the Board noted that the Applicant himself, in his post-deployment health assessment and his subsequent pre-deployment health assessment on 20041216, denied any mental or health concerns. The Board found no indication in the record that the Applicant ’s was inequitably or improperly denied treatment for his drug use. 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.

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)     20010910 - 20010916              Active:
Period of Service Under Review:
 Date of Enlistment: 20010917               Years Contracted :        Date of Discharge: 20050407
Length of Service : 03 Yrs 06 Mths 21 D ys          Lost Time : Days UA: Days Confine d :
Education Level:         Age at Enlistment:       AFQT: 46          MOS: 0121 Highest Rank:
Proficiency/Conduct marks (# of occasions):      4.4 ( 7 ) / 4.2 ( 7 )     Awards and Decorations ( per DD 214): GLOBAL WAR ON TERRORISM SERVICE MEDAL, GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL (KUWAIT), SEA SERVICE DEPLOYMENT RIBBON, NATIONAL DEFENSE SERVICE MEDAL, NAVY UNIT COMMENDATION, MERITORIOUS MAST, RIFLE EXPERT BADGE (3 RD AWARD), PISTOL EXPERT BADGE

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

 20030630:        Post-deployment health assessment completed. Applicant does not indicate any health concerns.

 20040311:        MARCORSEPMAN 6105 counseling for repeated unauthorized absences and IHCA for disorderly conduct .
          Applicant chose to make rebuttal statement; none found in record.
20040312:        NJP -- Viol UCMJ Art. 86 - Absent from appointed place of duty , Art. 107 - False official statement.
         Awarded - FOP ($ 348.00 ) for ( 1 month ) ; Restr for ( 14 days); Extra duties ( 14 days).
20040812:        MARCORSEPMAN 6105 counseling for unauthorized absence repeatedly and false official statement.

20041216:        Pre-deployment health assessment completed. Applicant does not indicate any health concerns.

 20041220 :         NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 20041220, positive for THC.

 20050119:        NJP -- Viol UCMJ Art. 112a - Wrongful use , marijuana; Art. 86 (5 specs) , Fail to go to section PT and w ork.
         Awarded - FOP ($ 820.00 ) for ( 2 months); RIR ( E-3 ); Restr for ( 45 days); Extra duties ( 45 days).
Discharge Process

 Date Notified:   20050308
Basis for Discharge:      DUE TO:
Least Favorable Characterization:       
Commanding Officer’s Intended Recommendation:   

Date Applicant Responded to Notification:                  20050308
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         Administrative Board                      

Commanding Officer Recommendation (date):        ( 20050308 )
 SJA review (date):       ( 20050321 )
Separation Authority (date):     C G , 2D FORCE SERVICE SUPPORT GROUP ( 20050323 )
 Basis for discharge directed:   DUE TO:
Characterization directed:     
Date Applicant Discharged:       20050407

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 September 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 .

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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