Search Decisions

Decision Text

USMC | DRB | 2007_Marine | MD0700656
Original file (MD0700656.rtf) Auto-classification: Denied
ex-, USMC
MD07-00656
Current Discharge and Applicant’s Request
Application Received: 20070410   Characterization Received:
Narrative Reason: MISCONDUCT                                         Authority: MARCORSEPMAN 6210.5

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to: DISCHARGED
Applicant’s Issues:       1. Discharge occurred 2 years after incident
                           2. Never failed a urinalysis
                           3. Ineffective assistance of counsel
                           4. Misconduct warranted reprimand, not discharge
                           5. Did not sign discharge papers, purported signature forged

Decision

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

Date: 20 071129             Location: Washington D.C.         Representation :

Discussion

Issue 1 ( ). The Applicant contends that in January 1998 “it was brought to [her] attention” an incident involving other Marines having failed a urinalysis “two years prior.” The record reflects that the Applicant pled guilty, pursuant to her pretrial agreement, in October 1997 to a charge of violating Article 112a of the Uniform Code of Military Justice (UCMJ) on numerous occasions in July, 199 6 . The statute of limitations under the UCMJ is 5 years. The Board found no impropriety or inequity in the time involved between identifying and adjudicating the Applicant’s offense and subsequently administering the procedural and substantive requirements of processing her for discharge.

Issue 2 ( ). The Applicant was found guilty, pursuant to her own plea voluntarily rendered pursuant to her pretrial agreement offer to so plead in exchange for not adjudicating the charge at special court-martial. A guilty plea is the strongest form of evidence of guilt. A positive result on a urinalysis is not required in order to find misconduct.

Issue 3 ( ). The Board found no evidence that Applicant’s counsel was ineffective in representing her. To the contrary, the Board found that the Applicant successfully, with the assistance of counsel, negotiated a pretrial agreement by which she avoided the potentially more severe consequences of a special court-martial and also avoided a characterization of service as other than honorable, the characterization normally received by Marines found guilty of illegal drug use. The Applicant’s unsupported allegations do not overcome the presumption of regularity in this case.

Issue 4 ( ). There is credible evidence in the record that the Applicant used illegal drugs. Mandatory processing for separation is required for Marines who abuse illegal drugs. Separation under these conditions usually results in characterization of service under other than honorable conditions. The Applicant actually received a more favorable characterization of service. The summary of service clearly documents that misconduct due to drug abuse was the reason the Applicant was discharged. No other Narrative Reason for Separation could more clearly describe why she was discharged. A change to the narrative reason or characterization of service on these grounds is unwarranted.

Issue 5 ( ). The Board was not sure whether the Applicant referred to her acknowledgement of, and response to, the notification of administrative separation processing or to her DD 214. In either event, or both, the Board could not discern any error. The documents appeared proper on their face, and the Applicant’s unsupported allegations do not overcome the presumption of regularity in this case. The Board specifically found that, in light of the Applicant’s favorable characterization of service, she suffered no prejudice as the result of any administrative error that might have occurred in effecting her 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 Service Record Entries , Discharge Process and evidence submitted by the Applicant, t he Board found that

Summary of Service

 Prior Service:
 Inactive: USMCR (DEP)     19941122 - 19951002              Active:         
Period of Service Under Review:
 Date of Enlistment: 19951003      Years Contracted : ; Extension:   Date of Discharge: 19980320
Length of Service : 02 Yrs 04 Mths 18 D ys          Lost Time : Days UA: Days Confine d :
Education Level:         Age at Enlistment:       AFQT: 36          MOS: 3361 Highest Rank:
Proficiency/Conduct marks (# of occasions):      4.5 ( 7 ) / 4.0 ( 7 )     Fitness reports :
Awards and Decorations ( per DD 214): RIFLE MM, NDSM, CERTCOM(3), MERITORIOUS MAST, CERTACH

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

 19941122:        Applicant received enlistment waiver for MGD x 3.

19941122:        Applicant certified understanding of Marine Corps policy concerning illegal use of drugs.

 19960729 :        MARCORSEPMAN 6105 counseling for failure to go, lack of discipline and responsibility, poor judgment and attitude .

 19970 902 :        Applicant offered pretrial agreement (PTA): Plead guilty at summary court-martial (SCM) in exchange for convening authority withdrawing charge from special court-martial (SPCM) and referring to SCM; waive right to administrative discharge board in exchange for discharge characterization of general (under honorable conditions).
19970909:        Charge preferred against Applicant: Violation of UCMJ Art 112a.
19970915:        Convening Authority accepts PTA offer.

Illegible:       Charge withdrawn from SPCM, referred to SCM per PTA.

 19971002 :        SCM -- Viol UCMJ Art. 112a – Numerous occasions btwn 19960701 - 19960731 wrongfully use marijuana .
          Awarded - FOP ( $673.00 ) for ( 1 month); RIR ( E-1 ); Hard Labor w/out Confinement ( 30 days).
19971231:        Applicant advised of opportunity of evaluation and medical diagnosis. Applicant declined treatment. Applicant advised of location of VA hospital nearest her home of record.
Discharge Process

 Date Notified:   199 80115
Basis for Discharge:      DUE TO:
Least Favorable Characterization:       
Commanding Officer’s Intended Recommendation:   

Date Applicant Responded to Notification:                  19980118
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                         ( NONE FOUND IN RECORD )
         Administrative Board                      

Commanding Officer Recommendation (date):        NOT FOUND IN RECORD
SJA review (date):       ( illegible )
Separation Authority (date):     COMMANDER, MCRD/WRR SAN DIEGO (19980303)
Basis for discharge directed:  
Characterization directed:     
Date Applicant Discharged:       19980320

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. Marine Corps Separation and Retirement Manual , (MCO P1900.16E), Paragraph 6210, MISCONDUCT, effective 31 Jan 97 until 31 August 2001.

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 , Wrongful use, possession, etc., of controlled substances.


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 | MD0700750

    Original file (MD0700750.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)20000728 - 20000808Active: Period of Service Under Review: Date of Enlistment: 20000809Years Contracted:; Extension: Date of Discharge:20021101Length of Service: 02 Yrs 02Mths23 DysLost Time:Days UA: 28 Days Confined: Education...

  • USMC | DRB | 2007_Marine | MD0700568

    Original file (MD0700568.rtf) Auto-classification: Denied

    Summary of Service Prior Service: Inactive: USMCR (DEP)19991008 - 19991128Active: 19991129 - 20031001 Period of Service Under Review: Date of Enlistment: 20031002Years Contracted:; Extension: Date of Discharge:20050713Length of Service: 01 Yrs 09Mths11 DysLost Time:Days UA: Days Confined: Education Level: Age at Enlistment:AFQT: 36MOS:0811Highest Rank: Proficiency/Conduct marks (# of occasions):Fitness reports: Awards and Decorations (per DD 214):GCM, GWOTSM, NDSM, SSDR, NUC, KCM, NATO,...

  • USMC | DRB | 2007_Marine | MD0700605

    Original file (MD0700605.rtf) Auto-classification: Denied

    The Applicant provided evidence of post-service employment and lack of criminal record since his discharge; however, after a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct which precipitated the discharge.In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is...

  • USMC | DRB | 2013_Marine | MD1301795

    Original file (MD1301795.rtf) Auto-classification: Denied

    A preponderance of the evidence reviewed supports the conclusion that the Applicant committed several serious offenses, that separation from the Marine Corps was appropriate, and that an Under Other Than Honorable Conditions characterization of service was warranted. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s date of...

  • NAVY | DRB | 2007_Navy | ND0700249

    Original file (ND0700249.doc) Auto-classification: Denied

    Charge VI: violation of the UCMJ, Article 134 (15 Specs) Specification 1: Solicited AO2 V_ to wrongfully wear NMCAM Medal. 20030131: DD Form 214: Applicant discharged this date by reason of misconduct due to commission of serious offense with a characterization of service as under other than honorable conditions. The Board did so.]

  • USMC | DRB | 2011_Marine | MD1100546

    Original file (MD1100546.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/ToCongress member: Pertinent Regulation/Law A. Paragraph 1105, DISCHARGE...

  • USMC | DRB | 2007_Marine | MD0700825

    Original file (MD0700825.rtf) Auto-classification: Denied

    The Applicant, while assigned as the unit Equal Opportunity representative, fraternized with, attempted to commit adultery with, sexually harassed and indecently assaulted a junior, subordinate, female Marine. 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 Administrative Corrections to the Applicant’s DD 214 The NDRB did note...

  • USMC | DRB | 2014_Marine | MD1400875

    Original file (MD1400875.rtf) Auto-classification: Denied

    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 .The Applicant is not eligible for further reviews by the NDRB. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the...

  • USMC | DRB | 2010_Marine | MD1000909

    Original file (MD1000909.rtf) Auto-classification: Denied

    The record also reflected that the Applicant had a pre-service drug waiver for using marijuana prior to entering the Marine Corps, and acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 16 May 1994. The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects his willful failure to meet the requirements of conduct expected of all Marines and falls far short of what is required for an upgrade in the...

  • USMC | DRB | 2010_Marine | MD1001526

    Original file (MD1001526.rtf) Auto-classification: Denied

    He was separated from the Marine Corps on 3 Apr 2009 with an Under Other Than Honorable Conditions discharge due to Misconduct (Drugs). Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries and the administrative separation process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .The Applicant remains eligible for a personal...