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USMC | DRB | 2008_Marine | MD0800924
Original file (MD0800924.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080314
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

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

Summary of Service

Prior Service:
 Inactive: USMCR (DEP)    19900810 - 19901016              Active:

Period of Service Under Review:
 Date of Enlistment: 19 901017              Period of Enlistment : Years Months    Date of Discharge: 19 940104
Length of Service: Yrs Mths 18 D ys     Education Level:         Age at Enlistment:      AFQT: 45
MOS: 1371        Highest Rank:          Fitness Reports:
Proficiency/Conduct Marks (# of occasions):      ( )/ ( )
 Awards and Decorations (per DD 214): Rifle Pistol

Periods of UA/CONF:

NJPs:   
         19930929 : Art 112a (Use of amphetamines and methamphetamines)
         Awarded - . Susp - .
         19931102 : Art 112a (Use of amphetamines and methamphetamines),
Art 134 (Broke restriction), 2 specifications.
         Awarded - . Susp - .

SCMs:   
                 
SPCMs:  
        
CC:     
        
6105 Counseling:
         19910723 : For l oss of weapons card.
19911028: For writing 10 checks without sufficient funds.

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 Representation:              From Member of Congress:
Other Documentation (Describe)

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

Applicant’s Issues

 1. Medical benefits for alcoholism.
Decision


 Date: 2008 627              Location: Washington D.C.        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall MISCONDUCT DUE TO DRUG ABUSE .

Discussion

 : Medical benefits is 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, specifically the paragraph concerning , regarding .

The Applicant desires an upgrade in the character of his discharge from “Under Other than Honorable” to “General (Under Honorable Conditions)” so he can receive treatment for his alcoholism which he feels was the traumatic result of contracting malaria while deployed to Somalia. Additionally, he states his in-service drug use was due to a “set up” out in town and he was a victim of innocent ingestion.

During Board reviews the government is presumed to conduct its affairs with regularity, unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant provides no credible evidence or documentation of any kind to support his statement he is alcohol dependent. There is also no evidence in the record, nor was any provided, to indicate the Applicant was “set up” for innocent ingestion of amphetamines and methamphetamines on 2 separate occasions as he states. The Applicant’s service record was marred by 2 non-judicial punishments for violations of the Uniform Code of Military Justice (UCMJ): Article 112a (Drug abuse) and Article 134 (Breaking restriction); 2 specifications for each article over a 2 month period. It was also noted the Applicant required a pre-service drug waiver to enter into the Marine Corps for prior drug use.

Violation of Article 112a is considered a serious offense which is punishable by a punitive discharge and confinement, if adjudicated by a court-martial. Mandatory processing for separation is required for Marines who abuse illegal drugs. The command did not pursue a court-martial but opted to discharge the Applicant through an administrative separation for use of drugs. The record also reflects the Applicant was given a retention warning on 2 separate occasions for the loss of a weapons custody card and for writing 10 checks without sufficient funds. For the edification of the Applicant, writing bad checks is a violation of Article 123a of the UCMJ which is punishable as well by a punitive discharge and confinement, if adjudicated by a court-martial. The command only provided counseling to the Applicant for this incident and did not pursue punitive action for this offense.

The Board found no indication in the record the Applicant was inequitably or improperly denied treatment for his drug use. The Applicant’s also alleges he was denied assistance for his alcoholism, however d uring his separation proceedings the Applicant was screened twice for substance dependency and was found to be non-dependent for both drugs or alcohol by military medical authorities. Furthermore, the evidence o f record does not demonstrate the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record, Discharge Process and evidence submitted by the Applicant, the Board found






Pertinent Regulation/Law

 A Marine Corps Separation and Retirement Manual, ( MCO P1900.16D), Paragraph 6210, Misconduct , of the Marine Corps Separation and Retirement Manual, ( effective 27 Jun 89 until 17 Aug 95.

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, Articles 112a and 134 and up to 5 years confinement.             .

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, 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 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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