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USMC | DRB | 2007_Marine | MD0700936
Original file (MD0700936.rtf) Auto-classification: Denied
ex-, USMC
MD07-00936
Current Discharge and Applicant’s Request
Application Received: 20070626   Characterization Received:
Narrative Reason: MISCONDUCT     Authority: MARCORSEPMAN 6210.5

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change:

Applicant’s Issues:       1. Reenlist
                            2. Post Service – employed and volunteer service


Personal Appearance Hearings

 NDRB Documentary Review Conducted (date):        20041008
NDRB Documentary Review Docket Number:   MD04-00679
NDRB Documentary Review Findings:                 5-0 no change

Applicant Testified:                                Yes
Applicant Available for Questions:                         Yes
Witnesses:                                           None
Observers:                                           None

Date: 2008 0312                      Location: Washington D.C         R epresentation :

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

 : 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 .

Issu e 2 ( ): The NDRB is authorized to consider post-service factors in the re characterization of a discharge . However, 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 the civilian life subsequent to leaving the servi ce. Normally, to permit relief a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. O utstanding post-service conduct 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, is considered. The Applicant provided two letters verifying his past employment and recommending him for employment in the future as well as a letter thanking him for his volunteer efforts during a two day effort to find a missing person. Additionally, he testified to his current employment, lack of a criminal record and drug free lifestyle as doc umentation of his post-service accomplishments. The Board determined that the documentation provided by the Applicant did not mitigate the misconduct which resulted in the Applicant’s discharge and characterization of his service .

In reviewing discharges, the Board presume s regularity in the conduct of g overnment al affairs unless there is substantial credible evidence ( to include evidence submitted by the Applicant ) to rebut the presumption . After a thorough review of the available evidence to include the Applicant’s s ummary of s ervice, m edical and s ervice r ecord e ntries, d ischarge p rocess and evid ence submitted by the Applicant the Board found that




Summary of Service

 Prior Service:
 Inactive: USMCR (DEP)     19970731 - 19971111
Period of Service Under Review:
 Date of Enlistment: 19971112               Years Contracted :                 Date of Discharge: 20001020
Length of Service : 02 Yrs 11 Mths 09 D ys                            Lost Time :
Education Level:                  Age at Enlistment:                AFQT: 42          MOS: 0341/ 8611
Highest Rank:
Proficiency/Conduct marks (# of occasions):      3.7 ( 10 ) / 3.6 ( 10 )            Fitness reports : NA
Awards and Decorations ( per DD 214): Rifle , SSDR

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

 19990714:        NJP – Viol ation of UCMJ Art icle 81 (conspiracy) ; c onspire with LCpl K_ to commit underage drinking
         Awarded - FOP ($ 100 /month for 1 month); Restr ( 14 days); Extra duties ( 14 days).
19991129:        MARCORSEPMAN 6105 counseling for failure to pass a HMMWV course conducted by the Bn MTO. SNM failed this course due to lacking knowledge and commitment.

20000616:        NJP – Viol ation of UCMJ Art icle s 92 (f ail to obey , drinking and driving ) , 111 (drunk driving, on board Camp Pendleton ) , and 134 (d runk and disorderly ) .
         Awarded - FOP ($ 563.00 /month for 2 months , suspended for six months ); RIR ( E-2 ); Restr ( 45 days); Extra duties ( 45 days).
20000823 :         NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 20000817 , tested positive for methamphetamine.

 20000829:        MARCORSEPMAN 6105 counseling concerning the recent approval by the Battalion Com mander for commencement of the a dministrative s e paration package for misconduct as a result of violating UCMJ Article 112a (w rongful use of a controlled substance ) .
20000901 :        NJP – Viol ation of UCMJ Art icle 112a (w rongful use of a controlled substance, methamphetamine ) .
         Awarded - FOP ($ 502.00 /month for 2 months); RIR ( E-1 ); Restr ( 45 days); Extra duties ( 45 days).
Discharge Process

 Date Notified:   20000922
Basis for Discharge:      -
Least Favorable Characterization:       
Commanding Officer’s Intended Recommendation:   

Date Applicant Responded to Notification:                  20000922
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         Administrative Board                      

Commanding Officer Recommendation (date):        ( 20000926 )
SJA review (date):       ( 20001010 )
 Separation Authority (date):     COMMANDING GENERAL, , 1 ST MARINE DIVISION (REIN) ( 20001018 )
 Basis for discharge directed:   -
Characterization directed:     
Date Applicant Discharged:       20001020


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) From Suwannee County Sheriff letter of thanks for volunteer efforts


Pertinent Regulation/Law

 A. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), 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 .

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

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