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USMC | DRB | 2008_Marine | MD0800933
Original file (MD0800933.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 200318
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)    20020425 - 20030126              Active:
Period of Service Under Review:
 Date of Enlistment: 20030127               Period of enlistment : Years Months             Date of Discharge: 20070126
Length of Service: Yrs Mths 0 D ys      Education Level:         Age at Enlistment:       AFQT: 54
MOS: 3533        Highest Rank:                     Fitness reports:
Proficiency/Conduct marks (# of occasions):      ( )/ ( )
 Awards and Decorations (per DD 214): Rifle: , Pistol: , , x2, , , ICM

Periods of UA/CONF:

NJPs:   
         20050408 : Art . Awarded - , , (45 Days). Susp - (1/2 of the forfeiture - vacated 050525).
         20070119 : Art & Art . Awarded - , , (6 days). Susp - .
SCMs:   

SPCMs:  

CC:     

6105 Counseling:
         20050705: Non-Rec for promotion (recent NJP).
         20061023: DUI Arrest - BAC>0.08.
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)

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

Applicant’s Issues

 1. Benefits.
2. Inaccurate Urinalysis.
3. Unfair Treatment.
4. Completed Enlistment.

Decision


 Date: 20080530            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 .

: ( ) . The Applicant contends he erroneously tested positive for illegal drugs. In reviewing discharges, the Board presumes regularity in the conduct of government affairs unless there is substantial credible evidence to rebut the presumption. 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 his positive drug test was in error. Furthermore, t he separation code (entered on block 26 of the DD-214) indicates the Applicant waived his right to an administrative board. S eparation processing is mandatory for Marines who abuse illegal drugs. Violations of UCMJ Article 112a (wrongful use of a controlled substance) carry a maximum penalty of a Dishonorable Discharge and up to 5 years of imprisonment if adjudicated by a court martial. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge. Based upon the record, nothing indicates the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Marine Corps. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers the discharge proper and equitable.

: ( ) . The Applicant contends his unfair treatment caused him to accept non-judicial punishment for violation of UCMJ Article 112a rather than going to a court martial. In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. The Applicant has failed to produce any evidence of his unfair treatment other than his unsubstantiated allegations. In the case of drug use, s eparation processing is mandatory for Marines who abuse illegal drugs. As stated in the above paragraph the Applicant waived his right to an administrative board. Violations of UCMJ Article 112a (wrongful use of a controlled substance) carry a maximum penalty of a dishonorable discharge and up to 5 years of imprisonment if adjudicated by a court martial. The record clearly reflects his violation of UCMJ Article 112a which demonstrated he was unfit for further service. The evidence of record did not show the Applicant was either not responsible for his conduct or he should not be held accountable for his actions .

: ( ) . The Applicant contends his characterization of service is inequitable because it fails to take into consideration the fact the Applicant completed his four year enlistment and served two tours in Iraq. The record documents the Applicant’s in-service use of illegal drugs which is the basis for the discharge. S eparation processing is mandatory for Marines who abuse illegal drugs and preempts completion of service discharge processing. Violations of UCMJ Article 112a (wrongful use of a controlled substance) carry a maximum penalty of a dishonorable discharge and up to 5 years of imprisonment if adjudicated by a court martial. The Applicant waived his right to an administrative board. Discharges resulting from drug abuse normally result in an under other than honorable conditions characterization of service. Nothing in the record indicates the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Marine Corps. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Marine Corps and falls far short of that required for an upgrade.

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, Record, Discharge Process and evidence submitted by the Applicant, the Board found

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, 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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