Search Decisions

Decision Text

USMC | DRB | 2007_Marine | MD0700567
Original file (MD0700567.rtf) Auto-classification: Denied
ex-, USMC
MD07-00567
Current Discharge and Applicant’s Request
Application Received: 20070320   Characterization Received:
Narrative Reason: MISCONDUCT                                Authority: MARCORSEPMAN PAR 6210.5

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Isolated incident

Decision

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

Date: 20 071115             Location: Washington D.C.         Representation :

Discussion

 Issue 1 ( ). The Applicant claims that his discharge was based on one isolated incident. 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. The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for illegal drug use, thus substantiating the misconduct for which he was separated. Mandatory processing for separation is required for Marines who abuse illegal drugs. Separation under these conditions usually results in a characterization of service as under other than honorable conditions. Furthermore, the Applicant’s illegal drug use was not , contrary to his claim, his only documented misconduct. The Board found that the Applicant’s discharge properly characterized his service.

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)     20010213 - 20010318              Active:         
Period of Service Under Review:
 Date of Enlistment: 20010319               Years Contracted : ; Extension:   Date of Discharge: 20020801
Length of Service : 01 Yrs 04 Mths 13 D ys                   Lost Time : Days UA: Days Confine d :
Education Level: Age at Enlistment: AFQT: 39 MOS: 3381 Highest Rank: PFC
Proficiency/Conduct marks (# of occasions):      4.4 ( 4 ) / 3.6 ( 4 )     Awards and Decorations ( per DD 214): NDSM, RMB, LOA

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

20010814:        MARCORSEPMAN 6105 counseling for admittance to Level III Residential Program on 20010814.
20010919:        NJP -- Viol UCMJ Art. 92 – Disobey order (underage drinking); viol Art. 134 –indecent assault on PFC M_ while she was sleeping in her room.
         Awarded - FOP ($521.00) for (1 month); RIR (E-1); Restr for (30 days).
20010919:        MARCORSEPMAN 6105 counseling for NJP of this date .
20020501:        NJP -- Viol UCMJ Art. 112a – Wrongfully use marijuana, a controlled substance.
                   Awarded - FOP ($ 552.00 ) for ( 2 months); RIR ( E-1 ); Restr for ( 45 days); Extra duties ( 45 days).

20020510 :         NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 2020506 , tested positive for ( THC ).

 20020520:        Applicant refused alcohol rehabilitation treatment.
20020529:        Applicant reiterated refus al alcohol rehabilitation treatment.
20020606:        MARCORSEPMAN 6105 counseling for underage drinking and restriction violation.
20020606:        Counseling regarding illegal drug use. Advised being processed for administrative separation.
Discharge Process

 Date Notified:   20020622
Basis for Discharge:      DUE TO:
         DUE TO:
         DUE TO:
         ALCOHOL ABUSE REHABILITATION FAILURE
 Least Favorable Characterization:       
Commanding Officer’s Intended Recommendation:   

Date Applicant Responded to Notification:                  20020627
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         Administrative Board                      

Commanding Officer Recommendation (date):        ( 20020627 )
SJA review (date):      
Separation Authority (date):     COMMANDER, 3D FORCE SERVICE SUPPORT GROUP ( 20020712 )
Basis for discharge directed:   DUE TO:
Characterization directed:     
Date Applicant Discharged:       20020801

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 .


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 | 2007_Marine | MD0700769

    Original file (MD0700769.rtf) Auto-classification: Denied

    Certain 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 two nonjudicial punishment for a violation of UCMJ Article 86 (Unauthorized Absence) and Article 92 (Failure to obey an order or regulation) andone Summary Court Martial finding of guilty for Article 112a (Wrongful use of a controlled substance). After a thorough review of the available evidence, to include the...

  • USMC | DRB | 2007_Marine | MD0700232

    Original file (MD0700232.rtf) Auto-classification: Denied

    After complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and the evidence of post-service conduct did not mitigate the conduct which precipitated the 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. After a thorough review of...

  • USMC | DRB | 2007_Marine | MD0700403

    Original file (MD0700403.rtf) Auto-classification: Denied

    20050128 Rights Elected at Notification: Consult with Counsel Obtain Copies of Documents Submit Statement(s) (date) (20050128) Administrative Board Commanding Officer Recommendation (date): (20050128) SJA review (date): (20050330) Separation Authority (date): COMMANDING GENERAL, 1 ST MARINE DIVISION (20050404) Basis for discharge directed: DUE TO: Characterization directed: Date Applicant Discharged: 20050408 Types of Documents Submitted by Applicant and Considered By BoardRelated to...

  • USMC | DRB | 2007_Marine | MD0700961

    Original file (MD0700961.rtf) Auto-classification: Denied

    The evidence of record clearly indicates that the Separation Authority did not consider the Applicant’s enlistment waiver for pre-service drug use on the issue of his characterization of service. Commanding Officer Recommendation (date): , SUSPENDED FOR 12 MONTHS (20021009) SJA review (date): (20021025) Separation Authority (date): CG, MARINE CORPS BASE HAWAII (20021029) Basis for discharge directed: DUE TO: Characterization directed: Date Applicant Discharged: 20021029 Types of Documents...

  • USMC | DRB | 2007_Marine | MD0700485

    Original file (MD0700485.rtf) Auto-classification: Denied

    The Board determined that theApplicant’s undocumented claims of good post-service conduct did not mitigate the misconduct that resulted in the characterization of 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. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and...

  • USMC | DRB | 2007_Marine | MD0700515

    Original file (MD0700515.rtf) Auto-classification: Denied

    After a thorough review of the Applicant’s record, issues submitted, and post service accomplishments, the Board determined that clemency was not warranted and that the sentence awarded the Applicant at his court-martial was appropriate for the offense that he committed. 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, the Board found that Summary...

  • USMC | DRB | 2007_Marine | MD0700710

    Original file (MD0700710.rtf) Auto-classification: Denied

    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, the Board found that Summary of ServicePrior Service: Inactive: USMCR (DEP) 19980811 - 19980909 Period of Service Under Review: Date of Enlistment: 19980910 Years Contracted:4; Extension: Date of Discharge: 20010831Length of Service: 02 Yrs 11 Mths 22 DysLost Time:Days UA: Days Confined: Education...

  • USMC | DRB | 2007_Marine | MD0700379

    Original file (MD0700379.rtf) Auto-classification: Denied

    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, the Board found that Summary of Service Prior Service: Inactive: USMCR (DEP)20000625 - 20010605Active: Period of Service Under Review: Date of Enlistment: 20010606Years Contracted:Date of Discharge:20050317 Length of Service: 03 Yrs 09Mths12 DysLost Time:Days UA: Days Confined: Education Level: Age at...

  • USMC | DRB | 2007_Marine | MD0700516

    Original file (MD0700516.rtf) Auto-classification: Denied

    Absent any documentation provided by the Applicant for the Board to consider, the Board determined that the Applicant’s service record did notmitigate the misconduct that resulted in the characterization of discharge.An upgrade 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...

  • USMC | DRB | 2007_Marine | MD0700192

    Original file (MD0700192.rtf) Auto-classification: Denied

    Applicant claims his medical issues contributed to his misconduct and adverse discharge. (2) Wrongfully possess some amount of marijuana Article 112a: Wrongfully use marijuana.Date Applicant Submitted SILT request: 20051109 Consulted with or Waived Counsel: Acknowledged Understanding Elements: Acknowledged Guilt to: Article(s) 86 and 112a BCD/DD authorized for offense(s) Acknowledged Consequences of OTH: Type of Characterization Requested: Commanding Officer Recommendation...