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USMC | DRB | 2008_Marine | MD0800545
Original file (MD0800545.rtf) Auto-classification: Denied

ex-PVT, USMC
Current Discharge and Applicant’s Request
Application Received: 20080129
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)     20050409 - 20050410                      
Period of Service Under Review:
 Date of Enlistment: 2005041 1               Period of enlistment : Years Months             Date of Discharge: 20070612
Length of Service : Yrs Mths 11 D ys      Education Level:         Age at Enlistment: 20     AFQT: 64
MOS: 0352        Highest Rank: LCPL        P roficiency/Conduct marks (# of occasions):      4.0(6) / 3.8(6)
Awards and Decorations ( per DD 214): PH, CAR, ICM, SSDR, GWOTSM, NDSM, MM, Rifle MM, Pistol MM

Periods of UA / CONF : UA: NONE / CONF: (20070301-20070317 ( 16 days)

NJPs :     3
20061016 :         Art icle 86 (Fail ed to report to squad leaders course).
          Awarded – FOP, RESTR, EPD Susp -
20070202 :         Art icle 112a (Test ed positive on urinalysis for cocaine).
         Awarded – RIR, FOP, RESTR, EPD Susp - .
20070613:        Art icle 128 (Assaulted two Marines causing the need for immediate medical attention and hospitalization).
         Awarded - Awarded – FOP, RESTR, EPD Susp -

S CMs :    1        
20070320 :         Art icle 92 (Fail ed to obey an order by wrongfully driving off base).
          Sentence – RIR, FOP, CONF 20 DAYS .

6105 Counseling : 3
20061016 :         For failing to report to squad leaders course.
20070202:        For illegal drug involvement and positive urinalysis.
20070307;        For positive urinalysis.
Types of Documents Submitted/reviewed

 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)
         -Memorial Service booklet


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

Applicant’s Issues

 1. Veterans Affairs benefits.
2. P ost T raumatic S tress D isorder and T raumatic Brain Injuries lead to misconduct.
3. Inequitable compared to other Marines who committed the same misconduct.

Decision


 Date: 20 08 0 807             Location: Washington D.C         R epresentation :

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

 : (Equity) RELIEF WARRANTED. After a review of the Applicant’s service record and other evidence presented to the NDRB , the Board determined r elief is warranted . 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’s record of service was marred by three non-judicial punishments and a summary court marital for violations of the Uniform Code of Military Justice, Articles 86, 92, 112a, and 128. These violations are serious in nature and the Applicant could have received a punitive discharge and confinement if adjudicated by a special or general court-martial. The command did not pursue a punitive discharge but opted instead for an administrative discharge.

 The board reviewed the Applicant’s performance prior to his deployment to Iraq, performance while in Iraq, to include actions that resulted in combat-related wounds for which he was awarded the Purple Heart, and his subsequent misconduct upon returning from Iraq in reaching a decision. It was determined the experiences from deployment may have played a part in the downward performance of the Applicant after his return and those experiences were mitigating factors in this case . The board determined an upgrade to a “General (Under Honorable Conditions) was warranted. However, due to the nature of the offenses an upgrade to Honorable was deemed inappropriate by the Board.

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

Pertinent Regulation/Law

A. The Marine Corps Separation and Retirement Manual, (MCO P1900.16F, effective 1 Sep tember 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 .



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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