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Decision Text

USMC | DRB | 2008_Marine | MD0800519
Original file (MD0800519.rtf) Auto-classification: Denied

DAVIS, ROBERT D., 554-77-3349, ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080205
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN , Drug abuse

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

Summary of Service

Prior Service:
 Inactive: USMCR (DEP)     20010129 - 20010618               Active:         
Period of Service Under Review:
 Date of Enlistment: 20010619               Period of enlistment : Years Months             Date of Discharge: 20040415
Length of Service : Yrs Mths 28 D ys      Education Level:         Age at Enlistment:       AFQT: 53
MOS: 0121        Highest Rank:                     Fitness reports:
Proficiency/Conduct marks (# of occasions):      ( )/ ( )
 Awards and Decorations ( per DD 214): Rifle (2) Pistol MM

Periods of UA / CONF :

NJPs :    
         2004 02 10 : Art(s) 112a Awarded - Susp -

S CMs :            

SPCMs:  
        
CC:      

6105 Counseling :
         20040218 : For Article 112a
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 Representat ion :              From Member of Congress:
Other Documentation (Describe)

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

 1. Reenlistment Opportunities
 2. States he is a different person now and has learned from his mistakes.

Decision

 Date: 20 08 0404             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 Reenlistement/RE-codes.

Issue 2 ( ). 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 discipline standards of the Naval 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. The Applicant bears the burden of overcoming this presumption of regularity through the presentation of substantial and credible evidence to support the issue.

There is credible evidence in the A pplicant’s service record reflecting the use of marijuana on two separate occasions within a 30-day period as documented by Naval messages released from the NAVDRUGLAB Jacksonville, FL in January 2004. Wrongful use of controlled substances is a violation of the U niform Code of Military Justice , Article 112a and is considered a serious offense for which a punitive discharge is authorized if adjudged by a Special or General C ourts Martial. In accordance with MCO P1900.16_, para 6210.5, the Marine Corps Separations and Retirement Manual , all Marines found guilty of illegal drug use will be processed for administrative separation by reason of misconduct on the first offense. A review of the discharge process in the Applicant’s case record indicates the discharge was in accordance of established DOD and Marine Corps regulations and procedures . A change or upgrade in the discharge would be inappropriate.

The Applicant puts forward that over the passage of time he has changed and has learned from his previous mistakes. Furthermore, the Applicant states he is in school and wants to serve in the Army National Guard. However, the statement s provided by the Applicant are insufficient justification to warrant a change in the character of service . After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record, Discharge Process and evidence submitted by the Applicant, the Board found that

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.



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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