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USMC | DRB | 2008_Marine | MD0800451
Original file (MD0800451.rtf) Auto-classification: Denied
                  Docket No. MD08-00451

ex-, USMC

CURRENT DISCHARGE AND APPLICANT’S REQUEST


 Application Received: 20071221
Characterization of Service Received: UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge: MISCONDUCT
 Authority for Discharge:         MARCORSEPMAN 6210.5
Applicant’s Request:     Characterization change to: HONORABLE
                                    Narrative Reason change to: NONE REQUESTED
SUMMARY OF SERVICE

 Prior Service:
 Inactive: USMCR (DEP) 20030523 - 20030803 COG    Active: NONE
 Period of Service Under Review :
 Date of Enlistment: 20030804     Period of enlistment: 4 Years 0 Months   Date of Discharge: 20060726
 Length of Service: 02 Yrs 11 Mths 23 Dys          Education Level: 12      Age at Enlistment: 21     AFQT: 47
 MOS: 3051 Highest Rank: LANCE CORPORAL   Fitness reports: NOT APPLICABLE
 Proficiency/Conduct marks:       4.1/3.9
 Awards and Decorations (per DD 214): Rifle SS Pistol NONE SSDR OVSM GWOTSM IRAQ CAMPAIGN MEDAL

Periods of UA/CONF: 0/12
NJPs:    1
 20060116: Art(s) 1 l2a. Awarded - RIR FOP RESTR EPD Susp - NONE FOP
SCMs:    I
 20041222: Art(s) 121. Sentence - RIR E-l CONF 15 DAYS FOP
6105 Counseling: NONE
Types of Documents Submitted

 Related 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:
Other Documentation (Describe)







Key:     NFIR - Not Found In Record       UA – Unauthorized absence        NJP – Nonjudicial punishment     SCM – Summary court-martial
         SPCM – Special court-martial     FOP – Forfeiture of pay  RIR – Reduction in rank  EPD – Extra Duties
         CONF – Confinement                B&W – Confinement on bread and water                       CC - Civilian conviction

                  Docket No. MD08-00451

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONA
APPLICANT’S ISSUES


 1. Lied to by an Officer
2. Served in Iraq
3. Took almost one year for his NJP
4. Post Service
DECISION

 Date:    20080313 DOCUMENTARY REVIEW Location: WASHINGTON D.C Representation: NONE
By a vote of 5-0 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS .
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT .
DISCUSSION

 Issue 1: (Equity). The Applicant implies that he was lied to by an officer. The government enjoys a presumption of regularity in the conduct of its a ffai rs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that an officer lied to the Applicant. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.
Issue 2: (Equity). There is no legal provision that reduces the serious of an offense base on a member of the Armed Forces serving in a combat zone.
Issue 3: (Equity). The Applicant contends that it was almost one year elapsed between the drug offense and when he received
NIP for this drug offense. The statute of limitations for nonjudicial punishment proceedings for a violation of the Uniform
Code of Military Justice is two years. The record reflects that the NJP was within this time frame.
The Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service. There is credible evidence in the record that the Applicant used illegal drugs. The evidence of record does not demonstrate that the Applicant was not responsible for his conductor that he should not be held accountable for his actions. When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. A under other than honorable conditions discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. Certain serious offenses, even though isolated, warrant separation from the Naval service in order t o maintain proper order and discipline. The Applicant’s service was marred by a finding of guilty at one Summary Court-Martial for a violation of UCMJ Article 121 (Larceny) and was found guilty at one nonjudicial punishment for violation of Article 112a (Wrongful use of controlled substance). A violation of Article 112a and 121 are considered serious offenses for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial. An upgrade to honorable would be inappropriate.
Issue 4: (Equity). The NDRB is authorized to consider post-service factors in the recharacterization 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 service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding 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 his statement that his civil record is clean, that he is married with family and is employed by the City of Jacksonville as his post-service accomplishments. The Applicant’s efforts need to be more encompassing. For example, the Applicant could have produced evidence of a verifiable and continuous employment record, documentation of community service, documentation of a drug-flee lifestyle and educational pursuits. The Board determined that the undocumented claims provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge.

                  Docket No. MD08-00451


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, Discharge Process and evidence submitted by the Applicant, the Board found that the discharge was proper and equitable.

PERTINENT REGULATION/LAW

A. The Marine Corps Separation and Retirement Manual, (MCO P1900.1 6F, effective 01 Sep 2001 until Present, Paragraph 6210, MISCONDUCT .
B. Secretary of the Navy Instruction 5420.1 74D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Pam 211, Regularity of Government Affairs , Part V, Pam 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, Articles 11 2a and 121.

                  Docket No. MD08-00451
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, 0USD (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, provided 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 granted 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.
Employment/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 maybe upgraded based solely on the passage of time or g ood 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 203 74-5023

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