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USMC | DRB | 2008_Marine | MD0801247
Original file (MD0801247.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080506
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)     20021211 - 20030120              Active:

Period of Service Under Review:
 Date of Enlistment: 20030121               Period of E nlistment : Years Months             Date of Discharge: 20060419
Length of Service : Yrs Mths 19 D ys      Education Level:         Age at Enlistment:       AFQT: 34
MOS: 3533        Highest Rank:                     Fitness R eports:
Proficiency/Conduct M arks (# of occasions):      ( )/ ( )
 Awards and Decorations ( per DD 214): Rifle Pistol GCM NDSM SSDR GWTEM GWTSM

Periods of UA / CONF :

NJPs :    
20060307 :         Art 112a (Illegal drug use) .
Awarded - Susp - .

6105 Counseling :

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 his father, John McMahon III dated 30 April 2008

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

Applicant’s Issues

 1. Desires to reenlist .
2. Mislead as to the character of his discharge.
3. Unjust p unishment.
4 . Post s ervice 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 (Drug Abuse) .
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 states he was offered the option of an Honorable character of discharge or he could stay in the Marines and return with his unit to Iraq , if he plead guilty to the charge of illegal drug use . 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 bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. On 23 February 2006, the Applicant signed an ACKNOWLEDGEMENT OF RIGHTS TO BE EXERCISED OR WAIVED DURING SEPARATION PROCEEDINGS letter, in w hich he acknowledged and initialed he was being recommended for an under other than honorable characterization of service. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention his unit misled him during his separations process. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case . The Board determined r elief was not warranted.

: ( Equity ) . The Applicant claims the penalty outweighed his crime because he never used any drugs or failed a drug test. On 6 March 2006 the Applicant signed a statement in which he admitted using illegal drugs during December 2004 : th is statement was the basis for his administrative discharge. A r eview of available records reveals nothing to indicate the Applicant’s discharge was in any way inconsistent with the standards of disc ipline in the United States Marine Corps . The consequence for misconduct due to drug abuse is separation from the United States Marine Corps regardless of when the drug abuse occurred during an enlistment period .

When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. An under other than honorable conditions discharge 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’s service was marred by one non - judicial punishment (NJP) for violation of the U niform C ode of M ilitary J ustice (UCMJ), Article 112a. Violations of UCMJ Article 112a are considered serious offenses for which a punitive discharge is authorized and confinement for up to 2 years if adjudicated by a court-martial . An upgrade to General ( Under Honorable C onditions ) would be inappropriate . As such, the Board determined an upgrade was not warranted.

Issue 4: ( Equity) . The Applicant states he in an active member of the Sag Harbor VFW unit and volunteers with the Sag Harbor Volunteer Fire Department. 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 u nder review, is considered during Board reviews . The Applicant provided one letter of reference from his father. T he Applicant did not provide a personal statement, supporting documentation of post service accomplishments or additional character witness statements to support his request for an upgrade. 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 free existence, and certification of non-involvement with civil authorities. Without this documentation, t he Board determined an upgrade or change would be inappropriate. 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 servi c e conduct mitigates the reason for the characterization of discharge.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record En tries, Discharge Process , t he Board found


Pertinent Regulation/Law

 A. Ma rine Corps Separation and Retirement Manual, ( MCO P1900.16F) effective 1 September 2001 until Present, Paragraph 6210.5 MISCONDUCT (Drug Abuse) .

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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