Search Decisions

Decision Text

USMC | DRB | 2007_Marine | MD0700750
Original file (MD0700750.rtf) Auto-classification: Denied
ex-, USMC
MD07-00750
Current Discharge and Applicant’s Request
Application Received: 20070510   Characterization Received:
Narrative Reason: MISCONDUCT     Authority: MARCORSEPMAN 6210.5

 Applicant’s Request:      Characterization change to: HONORABLE or
                           Narrative Reason change to:
Applicant’s Issues:       1. VA Benefits
                           2. Misconduct due to depression over father’s death

Decision

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

Date: 20 07121 2             Location: Washington D.C.         Representation :

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 contends that his illegal drug use stemmed from his depression over the death of his father. The NDRB recognizes that the loss of a parent can be a very challenging event; however, it must be noted that most Marines serve honorably and therefore earn their honorable discharges. In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. 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. The Applicant, with the advice of counsel, knowingly and voluntarily offered to plead guilty to his illegal drug use and waive his administrative discharge board in exchange for not facing the prospects of more severe consequences at special court-martial. He got the benefit of his bargain. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable .

Issue 3 ( ). Although not raised by the Applicant, the Board noted an error in the processing of his separation. The Applicant was properly notified of his available rights in response to the proposed separation; however, the acknowledgement and election of rights form provided to him for his response failed to provide for an election regarding the submission of statement(s) for the Separation Authority’s consideration and inaccurately indicated that he was not entitled to an administrative discharge board because of his previously executed pretrial agreement. The Board noted that the Applicant did not lose his right to an administrative discharge board, he merely agreed in advance to waive it. His acknowledgment should have provided him the opportunity to waive or elect a board. If he failed to waive it in accordance with the agreement, the Convening Authority would then have the opportunity to determine whether or not to proceed with a special court-martial. Although error, the Board had no doubt that the Applicant suffered no prejudice as a result. First, t he Applicant’s record demonstrate s that he did submit numerous statements from his self and others regarding his desire to remain in the Marine Corps . Second, as noted above, the Applicant received the benefit of his bargain and, particularly since he had the assistance of counsel to guide him, if he had wanted to break the agreement and elect a board it would have been a simple matter to draft a new election of rights form. The record clearly shows that the Applicant committed misconduct for which mandatory processing for separation is required, and received the discharge warranted by the record of 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)     20000728 - 20000808              Active:         
Period of Service Under Review:
 Date of Enlistment: 20000809               Years Contracted : ; Extension:            Date of Discharge: 20021101
Length of Service : 02 Yrs 02 Mths 23 D ys                            Lost Time : Days UA: 28 Days Confine d :
Education Level:         Age at Enlistment:       AFQT: 82          MOS: 2311 Highest Rank:
Proficiency/Conduct marks (# of occasions):      4. 1 ( 6 ) / 3.8 ( 6 )   Awards and Decorations ( per DD 214): NDSM, R ifle MM

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

20010116:        Applicant to unauthorized absence at 0501.

20010212:        Applicant from unauthorized absence at 1620 ( 28 days/surrendered).
20010215:        NJP -- Viol UCMJ Art. 86 – Unauthorized absence.
         Awarded - FOP ($ 584.50 ) for ( 1 month); RIR ( E-1 ) suspended for 6 months ; Restr for ( 30 days); Extra duties ( 30 days).
20010827:        MARCORSEPMAN 6105 counseling for failure to be at appointed place of duty.
20020320 :         NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 20020313 , tested positive for ( Amphetamine/methamphetamine ).

 20020426:        Applicant offered pretrial agreement (PTA) to plead guilty to violation of Article 112a, UCMJ and waive administrative discharge board in exchange for referral of charge to summary court-martial.

20020517:        Convening Authority accepts PTA.

 20020726 :        SCM -- Viol UCMJ Art. 112a – Abt 20020219, w rongful use of amphetamine/methamphetamine .
          Awarded - FOP ( $826.00 ) for ( 1 months); RIR ( E-2 ); Restr ( 60 days).
20020910:        Applicant refused Medical Officer’s evaluation.

Discharge Process

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

Date Applicant Responded to Notification:                  20020912
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                         * (see discussion of Issue 3)
          Administrative Board                       * (see discussion of Issue 3)

Commanding Officer Recommendation (date):        ( 20020930 )
SJA review (date):       ( 20021016 )
Separation Authority (date):     CG, 1 ST FORCE SERVICE SUPPORT GROUP ( 20021030 )
Basis for discharge directed:   DUE TO
Characterization directed:     
Date Applicant Discharged:       20021101

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) Department of Veterans Affairs Rating Decision

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 .

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 | 2011_Marine | MD1100286

    Original file (MD1100286.rtf) Auto-classification: Denied

    ” 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 discharge. 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. Additionally, the NDRB has no authority to upgrade a...

  • USMC | DRB | 2007_Marine | MD0700656

    Original file (MD0700656.rtf) Auto-classification: Denied

    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. ” Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing,...

  • USMC | DRB | 2013_Marine | MD1301353

    Original file (MD1301353.rtf) Auto-classification: Denied

    Clemency denied.4: (Decisional) () . The NDRB determined clemency was not warranted based on post-service conduct. ” 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 discharge.

  • USMC | DRB | 2008_Marine | MD0801072

    Original file (MD0801072.rtf) Auto-classification: Denied

    The CA, per the requirements set out in paragraph 4003 of MCO P5800.16A (Marine Corps Manual for Legal Administration) forwarded the report of NJP to CMC (JAM), with the recommendation the applicant's letter of resignation be accepted and the Applicant be discharged with a “ General (Under Honorable Conditions)” characterization of service. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record, Discharge Process and evidence submitted by...

  • 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...

  • NAVY | DRB | 2010_Navy | ND1001658

    Original file (ND1001658.rtf) Auto-classification: Denied

    The Applicant’s conductreflects his willful failure to meet the requirements of conduct expected of all Sailors, especially considering his job specialty, and falls short of what is required for an upgrade.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 shall and the narrative reason for separation shall remain...

  • 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 | 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 | 2011_Marine | MD1100162

    Original file (MD1100162.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 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 appearance hearing for a period of fifteen years from the date of discharge. ” Additional Reviews : After a document review has been conducted,...