Search Decisions

Decision Text

USMC | DRB | 2007_Marine | MD0700821
Original file (MD0700821.rtf) Auto-classification: Denied
ex-, USMC
MD07-00821
Current Discharge and Applicant’s Request
Application Received: 20070523   Characterization Received:
Narrative Reason: MISCONDUCT     Authority: MARCORSEPMAN 6210.5

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Denied administrative discharge board
                           2. Discharge not warranted by overall service record

Decision

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

Date: 20 071220             Location: Washington D.C.         Representation :

Discussion

Issue 1 ( ). The Applicant alleges that he was denied his right to an administrative discharge board. As evidence, he submits a copy of what purports to be his undated “Acknowledgement of Rights to be Exercised or Waived in Connection with Discharge Proceedings (Board Case),” submitted in response to his notification of proposed administrative separation. The copy submitted by Applicant appears to indicate in paragraph 4.b. that Applicant initialed on the line next to the choice “do NOT) request a hearing before an Administrative Separation Board,” put a line through those initials, initialed above the lined over initials, initialed on the line before, and circled, the word “do.” If taken at face value, the Board determined that the document reasonably indicated that the Applicant initially waived his right to an administrative discharge board, but then changed his mind and annotated his election of an administration discharge board. In contrast to the Applicant’s submission however, the Board found in the Applicant’s electronic service record a copy of the same document that contained the Applicant’s initials on the line next to the choice “do NOT” with no other annotations, corrections or writing. The Staff Judge Advocate advised the Separation Authority that the Applicant had waived his right, apparently having reviewed the copy of the document reflected in the service record. The Board carefully compared the 2 copies and was completely satisfied that they were copies of one original, with the only difference between them being as noted above. The Board could not determine when the annotations on the Applicant’s copy were made; however, the Board found it extremely unlikely that the Applicant submitted his election of rights only to have someone unknown, in some manner unknown, for some reason unknown, unlawfully edit the document to remove the Applicant’s election of an administrative discharge board and deceive the Separation Authority into taking action on an inaccurate submission. The Board found no error on this issue.

Issue 2 ( ). The Applicant essentially claims that his service as a whole, and in particular subsequent to his illegal drug use, d emonstrated rehabilitative potential and honorable service. Mandatory processing for separation is required for Marines who abuse illegal drugs. Separation under these conditions usually results in characterization of service as under other than honorable conditions. While the Board recognizes and commends the Applicant for his service in Iraq, it also noted that his drug use occurred immediately prior to his activation for that deployment. The Board did not presume that the Applicant used illegal drugs in order to avoid the deployment, but it did determine that , under the circumstances, such a conclusion was as reasonable, if not more so, than the one for which the Applicant argues. In light of all the facts and circumstances, and especially given the nature and seriousness of his offense, the Board did not find the Applicant’s discharge improper or inequitable.

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: NONE                              Active:
Period of Service Under Review:
 Date of Enlistment: 20000920               Years Contracted : (6 SMCR and 2 IRR)              Date of Discharge: 20060315
Length of Service : Active: 01 Yrs 05 Mths 12 D ys          Inactive: 04 Yrs 00 Mths 10 D ys   Lost Time : NONE Education Level:          Age at Enlistment:       AFQT: 50          MOS: 3531 Highest Rank:                   Proficiency/Conduct marks (# of occasions):      4.4 ( 9 ) / 4.3 ( 9 )    
Awards and Decorations ( per DD 214): GWOTEM, GWOTSM, SSDR, AFRM WITH “M” DEVICE, LOA

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

 20010710:        Applicant reported for initial tour of active duty for training .

20011219:        Applicant released from initial tour of active duty for training with an Honorable characterization of service by reason of completion of required active service (USMCR) IADT .

20011220:        Joined for duty with Det A, MWSS-472, MWSG-47, 4 th MAW, Wyoming, PA.
20040518 :         NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 20040514, tested positive for THC.

 20040601:        Applicant activated in support of Operation Iraqi Freedom.

20040709:        MARCORSEPMAN 6105 counseling for substance abuse.

 20040723 :        NJP -- Viol UCMJ Art. 112a - Wrongfully use marijuana btwn abt 20040501 - 20040514 .
         Awarded - FOP ($ 668.00 ) for ( 2 months); RIR ( E-2 ); Restr for ( 30 days); Extra duties ( 30 days).
20040816:        Applicant deployed to Iraq .

 20050211:        Applicant re-deployed to CONUS .
Discharge Process

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

Date Applicant Responded to Notification:                  20050310
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                         ( 20050315 )
          Administrative Board                      

20050531:        Applicant released from active duty with an Honorable characterization of service by reason of completion of required active service (USMCR) IADT. Not a final discharge.
Commanding Officer Recommendation (date):        ( 20051113 ) [E xtracted from CG’s ltr dated 200 6 0307 ]
SJA review (date):       ( 20060103 )
Separation Authority (date):     C G , 4 th MARINE AIRCRAFT WING, NEW ORLEANS ( 20060307 )
 Basis for discharge directed:   DUE TO
Characterization directed:     
Date Applicant Discharged:       20060315

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 .

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

  • NAVY | DRB | 2009_Navy | ND0900123

    Original file (ND0900123.rtf) Auto-classification: Denied

    The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case by case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.The Applicant provided evidence of employment and a character reference. The Board determined the characterization of service received, “Under...

  • USMC | DRB | 2009_Marine | MD0901038

    Original file (MD0901038.rtf) Auto-classification: 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 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, former members are eligible for a...

  • USMC | DRB | 2010_Marine | MD1001528

    Original file (MD1001528.rtf) Auto-classification: Denied

    However, based on post-service accomplishments, the awarded characterization of service shall GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain . ” 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. Additionally, the NDRB has no authority to upgrade a discharge for the sole...

  • USMC | DRB | 2013_Marine | MD1300297

    Original file (MD1300297.rtf) Auto-classification: Denied

    Post-service, the Applicant applied for clemency to the Naval Discharge Review Board, which granted an upgrade in the characterization of service to Under Other Than Honorable Conditions in September 2011.: (Decisional) () . Full relief to Honorable was not granted, because the Applicant had misconduct and was responsible for his actions.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, testimony, record entries, and discharge...

  • NAVY | DRB | 2008_Navy | ND0800999

    Original file (ND0800999.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: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL...

  • NAVY | DRB | 2007_Navy | ND0700493

    Original file (ND0700493.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to:Narrative Reason change to: Applicant’s Issues:1.Request change of RE Code to reenlist in Army2. Further, the Applicant's misconduct is clearly documented. 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: USNR (DEP)20030926 -...

  • NAVY | DRB | 2007_Navy | ND0701097

    Original file (ND0701097.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: USNR (DEP) 19980818 - 19981108 Period of Service Under Review: Date of Enlistment: 19981109Years Contracted:4; Extension: 22 monthsDate of Discharge:20040607Length of Service:05 Yrs 06 Mths29 DysLost Time:Education Level: Age at...

  • NAVY | DRB | 2008_Navy | ND0800098

    Original file (ND0800098.rtf) Auto-classification: Denied

    Applicant’s Request: Characterization change to: Narrative Reason change: Summary of Service Prior Service: Inactive: USNR (DEP)20030225 - 20031116 Period of Service Under Review: Date of Enlistment: 20031117Period of enlistment: YearsExtensionDate of Discharge:20060315Length of Service: Yrs Mths29 DysEducation Level: 12Age at Enlistment:21AFQT: NAHighest Rank/Rate:FC3Evaluation marks:Performance: 4.0 (1) Behavior:4.0 (1)OTA: 4.0 (1)Awards and Decorations (per DD 214):and Types of Documents...

  • NAVY | DRB | 2009_Navy | ND0901262

    Original file (ND0901262.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1.Post-service conduct 2. ” 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. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

  • USMC | DRB | 2007_Marine | MD0700301

    Original file (MD0700301.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)20000531 - 20001016Active: 20001017 - 20041001 Period of Service Under Review: Date of Enlistment: 20041002Years Contracted:; Extension: Date of Discharge:20060321Length of Service: 01 Yrs 05Mths19 DysLost Time:Days UA: Days...