Search Decisions

Decision Text

USMC | DRB | 2007_Marine | MD0700451
Original file (MD0700451.rtf) Auto-classification: Denied
ex-, USMC
MD07-00451
Current Discharge and Applicant’s Request
Application Received: 20070222   Characterization Received: GENERAL (UNDER OTHER THAN HONORABLE)
Narrative Reason: DRUG ABUSE (BOARD REQUIRED BUT WAIVED)         Authority: MARCORSEPMAN 6210.5

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. One isolated incident and overall record of service.
                           2. Youth and immaturity.
                           3. Post service.
Personal Appearance Hearing

A pplicant Testified:                               
Applicant Available for Questions:               
Witnesses:                                                
Observers:                                               

Decision

Date: 20 080305     Location: Washington D.C.        Representation :

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

Discussion

Issue 1 (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. 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 during the current enlistment was marred by one Summary Court Martial for violating the UCMJ Article(s) 86 and 112a. An upgrade to honorable would be inappropriate .

Issue 2 (Equity. The Applicant contends that his problems were attributed to his youth, immaturity , and family personal problems. While he may feel that this was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was 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 c onduct or that he should not be held accountable for h is actions. Vi olation s of UCMJ Article (s) 86 and 112a are considered serious offense s for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial.

Issue 3 (Equity). 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 the service. The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge 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. The Board found that the Applicant had submitted credible evidence indicative of good post-service conduct, and commends the Applicant’s apparent rehabilitative success to date. However, after a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate in light of the nature and seriousness of the Applicant’s misconduct, and that the evidence of post-service conduct was not sufficient to convince the Board that an upgrade was appropriate.

Summary of Service

 Prior Service:
 Inactive: USMCR (DEP)     19920917 - 19930627                      
Period of Service Under Review:
 Date of Enlistment: 19930628      Years Contracted : ; Extension:   Date of Discharge: 19960416
Length of Service : 02 Yrs 09 Mths 19 D ys          Lost Time : Days UA: 41 Days Confine d : 12
Education Level:         Age at Enlistment:       AFQT: 62          MOS: 0151 Highest Rank:
Proficiency/Conduct marks (# of occasions):      4.7 ( 9 ) / 3.0 ( 10 )   
Awards and Decorations ( per DD 214): NDSM, SSDR , RIFLE MM

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

19950808:        Applicant to unauthorized absence.
19950908:        Applicant declared a deserter.
19950918:        Applicant from unauthorized absence ( 41 days/surrendered).

 19960117 :        SCM -- Viol UCMJ Art. 86 – 19950808 to 19950918, Art. 112a – THC .
          Awarded - FOP ; R IR ( E-1 ); C ONFINEMENT ( 15 days).
19960215:        MARCORSEPMAN 6105 counseling for wrongful use of ma ri juana. Referred to CSACC.
19960228:        CSACC evaluated applicant as a non-dependent drug abuse and, therefore, informed that he is not entitled to treatment in conjunction with separation from the Marine Corps.


Discharge Process

 Date Notified:   19960206
Basis for Discharge:      DUE TO
        
Least Favorable Characterization:       
Commanding Officer’s Intended Recommendation:   

Date Applicant Responded to Notification:                  19960206
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         Administrative Board                      

Commanding Officer Recommendation (date):        ( 19960311 )
SJA review (date):       ( 19960327 )
Separation Authority (date):     COMMANDING GENERAL, MARINE CORPS BASE, QUANTIC O ( 199604 08 )
Basis for discharge directed:   DUE TO
Characterization directed:     
Date Applicant Discharged:       19960416

NDRB Documentary Review Conducted (date):        19971222
NDRB Documentary Review Docket Number:   MD97-01004
NDRB Documentary Review Findings:                 No change warranted


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. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95 to 30 Jan 97.

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) 86 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

Similar Decisions

  • USMC | DRB | 2009_Marine | MD0902434

    Original file (MD0902434.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. Furthermore, the Applicant did not submit any evidence with his application to the NDRB to overcome the government’s presumption of regularity in the administrative discharge.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and administrative discharge process, the Board found Therefore, the awarded...

  • USMC | DRB | 2011_Marine | MD1101924

    Original file (MD1101924.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 discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain.Since 15 years have elapsed since the date of his discharge, the Applicant is not eligible for...

  • USMC | DRB | 2009_Marine | MD0900680

    Original file (MD0900680.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: Substance Abuse: Criminal Records: Family/Personal Status: Community Service: References: Additional Statements:From Applicant:From Representation: From Congress member: Other Documentation: Pertinent Regulation/Law A. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and...

  • NAVY | DRB | 2008_Navy | ND0800982

    Original file (ND0800982.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated to Military Service: DD 214: Service and/or Medical Record: Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Substance Abuse: Criminal Records: Family/Personal Status: Community Service: References: Additional Statements From Applicant: From Representation: From Member of Congress: Other Documentation (Describe) Administrative Corrections to the Applicant’s DD 214The NDRB did note...

  • USMC | DRB | 2007_Marine | MD0700743

    Original file (MD0700743.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to:Narrative Reason change to: Applicant’s Issues:1. Date:20071115Location:Washington D.C.Representation: Discussion Issue 1 (Equity): With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency (leniency). After a thorough review of the Applicant’s record, issues submitted, and the standards of discipline, the Board determined that clemency was not warranted.

  • USMC | DRB | 2008_Marine | MD0801547

    Original file (MD0801547.rtf) Auto-classification: Denied

    By a vote of the Narrative Reason shall MISCONDUCT (DRUG ABUSE).Discussion :().The Applicant regrets the mistakes he made while on active duty and desires to upgrade his discharge.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 Board determined the characterization of service received, “Under Other Than Honorable Conditions”,...

  • NAVY | DRB | 2007_Navy | ND0700035

    Original file (ND0700035.rtf) Auto-classification: Denied

    Complete Service Record: YES Complete Medical Record: NOComplete Discharge Package: YES Regarding propriety, the Board found the discharge: Regarding equity, the Board found the discharge: Issue 1 (Equity): The Applicant contends that his misconduct while in the Navy is attributable to his youth and immaturity at the time. Elements of Discharge: [INVOLUNTARY] Date Notified:19950726Reason for Discharge - - Least Favorable Characterization Authorized: Date Applicant Responded to...

  • NAVY | DRB | 2011_Navy | ND1100004

    Original file (ND1100004.rtf) Auto-classification: Denied

    The Board conducted a thorough review of the Applicant’s service records to determine whether his discharge met the standards of propriety and equity at the time of discharge and whether his post-service achievements warrant a discharge upgrade. Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entriesand the administrative separation process, the Board found Therefore, the awarded characterization of service...

  • USMC | DRB | 2015_Marine | MD1500687

    Original file (MD1500687.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/To Congress member: Pertinent Regulation/Law A. Paragraph 1105,...

  • 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...