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USMC | DRB | 2008_Marine | MD0801116
Original file (MD0801116.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080421
Characterization of Service Received:
Narrative Reason for Discharge: MISCONDUCT (DRUG ABUSE)
Authority for Discharge: MARCORSEPMAN

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

Summary of Service

Prior Service:
 Inactive: USMCR (DEP)     19940318 - 19941204              Active:

Period of Service Under Review:
 Date of Enlistment: 19941205               Period of E nlistment : Years Months             Date of Discharge: 19980110
Length of Service : Yrs Mths 06 D ys      Education Level:         Age at Enlistment:       AFQT: 70
MOS: 3521        Highest Rank:                     Fitness R eports:
Proficiency/Conduct M arks (# of occasions):      ( )/ ( )
 Awards and Decorations ( per DD 214): Rifle MM

Periods of UA / CONF :

NJPs :    

S CMs :   
         19970828 : Art icle 112a (Drug abuse)
         Sentence - (19970828-19970919 (23 days)) RESTR . Susp - FOP RESTR.
         CA Action: 19970828 Approved and order executed.

SPCMs:  

CC:      

6105 Counseling :
         19971212 : For my illegal drug involvement; usage as identified by NAVDRUGLAB JAXFL message 011712z Apr 97 for THC.

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) Letter from Cuyahoga County Veterans Service Commission


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

Applicant’s Issues

 1. Unjust discharge due to one incident.
2. Result of personal problems.
3. Did not get legal counsel.
4. Desires to reenlist.
 5. Post s ervice conduct.

Decision


 Date: 20 08 0710             Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall MISCONDUCT (Drug Abuse) .
Discussion

Issue 1 ( ) : . The Applicant feels after over 3 years of honorable service the discharge was inequitable since it was based on one isolated incident. For the edification of the Applicant, d espite a service member’s prior record of se rvice certain serious offenses, even though isolate d, warrant separation from the N aval S ervice in order to maintain proper order and discipline . The characterization of service is a description of the total service provided during the member’s enlistment. When the service of a member of the Naval Service has been honest and faithful, it is appropriate to characterize that service as honorable. d ischarge 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.

The Applicant was charged with a violation of the U niform C ode of M ilitary J ustice Art icle 112a, W rongful use of marijuana . This is an offense punishable by a punitive discharge and confinement up to 5 years if adjudicated by a special or general c ourt- ma rtial; the command opted for a summary court martial and administratively discharged the Applicant. Although the Applicant considers a discharge for this a one time offense unjust , he acknowledged the potential consequences of illegal drug use on his enlistment documents. He cho se to use the drug knowing the potential consequences . The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of the Naval Service and f alls short of w hat is expected of a Marine, regardless of rank or time in service. T he Board determined an upgrade would be inappropriate.

( ) : . The Applicant contends his family hardships and personal problems ( his wife filed for divorce and his mother was dying of cancer ) caused him to make mistakes while on active duty. He states he was suffering from acute depression which resulted in alcohol abuse and then drug abuse. He provides no proof of his dependency on alcohol or medical documentation of depression while in the service. While the Applicant may feel his personal problems were the underlying cause of his misconduct, his willful misconduct by using illegal drugs demonstrated he was unfit for further military service. The evidence of record did not show the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions due to personal problems or dependency on alcohol . The Board determined an upgrade would be inappropriate.

( ) : . The Applicant claims he was not represented by legal council during his s ummary c ourt-martial due to misinformation by his parent unit. 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 Record of Court-Martial (NAVMC 118) signed by CWO2 M.E. Mino, Personnel Officer for the Applicant’s unit, indicates the accused waived representation by council. Additionally, in his ADMINISTRATIVE SEPARATIONS package, documentation again shows the Applicant waive d his right to council. The Applicant provides the Board no evidence the unit misrepresented his rights to council or denied him council in any way. The Board determined an upgrade would be inappropriate.


Issue 4 ( Equity ): T he Applicant desires to reenlist in either the National Guard or the Reserves. 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 , specifically the paragraph concerning s regarding .

Issue 5 (Equity): RELIEF NOT WARRANTED. The Applicant feels his post service conduct has been good enough to warrant an upgrade in the characterization of his discharge. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides 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 . Outstanding post-service conduct, 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, is considered. The Applicant provided two letters of reference (one undated with no contact information) and two training completion certificates (one 9 years old) to show post service accomplishments. The Applicant's efforts need to be more encompassing. For example, the Applicant could have produced evidence of a verifiable employment record, documentation of community /church service, evidence of a drug /alcohol free existence, and certification of non-involvement with civil authorities . The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case by case basis to determine if post service conduct mitigates the reason for the characterization of discharge. The documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge . T he Board determined an upgrade w ould be inappropriate.

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. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective
31 Jan uary 97 until 31 August 2001.

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, Illegal Drug Use.


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 or is referred to a court-martial fo r 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 other medical related reasons. ” 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 special 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. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

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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