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USMC | DRB | 2008_Marine | MD0801153
Original file (MD0801153.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080430
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)     20000721 - 20000730              Active:

Period of Service Under Review:
 Date of Enlistment: 20000731               Period of E nlistment : Years Months             Date of Discharge: 200 1 0711
Length of Service : Yrs Mths 00 D ys      Education Level:         Age at Enlistment:       AFQT: 50
MOS: 0341        Highest Rank:                     Fitness R eports:
Proficiency/Conduct M arks (# of occasions):      3.9/3.5 (3)
Awards and Decorations ( per DD 214): Rifle : , Pistol : .

Periods of UA / CONF : UA: 7 days, 20010702-20010708
CONF: 23 days, 20010405-200010427

NJPs :    

S CMs :    1
         200104 04: Art icle 112a ( W rongful use of marijuana).
          Sentence - RIR (E1), Confinement (30 days).

6105 Counseling : 2
         20010114: For failure to go to appointed place of duty and failure to complete assigned tasks.
          20010409: For illegal drug use.

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)
         Ohio Level II Firef ighter certification dated 11 June 2003.
         Ohio Basic EMT certification dated 28 A ugust 2006.
         Youngstown city employee identification card issued July 2007.
         Undated family portrait.
         National Registry of EMTs certification as a Basic EMT dated 29 J uly 2006.


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

Applicant’s Issues

 1. Employment opportunities.
2. Youth and immaturity.
3. Post service conduct.

Decision

 Date : 20 08 0711             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 , specificially the paragraph concerning regarding .

: ( ) . The Applicant contends his in-service misconduct may be attributed to his youth and immaturity while in service. The evidence of record does not demonstrate the Applicant was not responsible for his misconduct due to youth or immaturity. A discharge under other than honorable conditions is warranted when certain negative aspects of a service member's service outweigh the positive. The Board noted the Applicant's service was marred by a retention warning for failure to go to training and failure to complete assigned tasks , as well as a Summary Court Martial for a violation of the Uniform Code of Military Justice, Article 112a, (W rongful use of marijuana ) . Wrongful use of a controlled substance is considered a serious offense for which a punitive discharge and imprisonment may be given if adjudged by a Special or General Court Martial. Furthermore, violations of the Article 112a and the Marine Corps drug policy re quire administrative processing, even for a one time offense , regardless of rank or time in service. The Board determined an upgrade to the Applicant's discharge would be inappropriate.

: ( ) . 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. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. 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 certificates demonstrating he is qualified as a Level II Fireman and a Basic EMT, a Youngstown city employee ID card, and an undated family portrait as evidence of post-service accomplishments. The Applicant's efforts need to be more encompassing. For example, the Applicant could have produced documentation of community service, evidence of a drug free existence, documentation of educational pursuits, and certification of non-involvement with civil authorities . The Applicant should be aware completion of these items alone does not guarantee an upgrade from 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. Again, t he Board determined an upgrade would 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







Administrative Corrections to the Applicant’s DD 214


 The NDRB did note an administrative error on the original DD Form 214. Block 25, Separation Authority, should read: "MARCORSEPMAN PAR 6210.5". Headquarters Marine Corps, Deputy Commandant for Manpower and Reserve Affairs (MMSR-3) , Quantico, VA, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

Pertinent Regulation/Law

 A. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 Jan 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 (wrongful use of a controlled substance) .


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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