Upgrade.Vet

USMC | DRB | 2008_Marine | MD0801296

Original file (MD0801296.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20080530

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)     20010510 - 20010916              Active:

Period of Service Under Review:
Date of Enlistment: 20010917               Period of E nlistment : Years Months             Date of Discharge: 20050726
Length of Service : Yrs Mths 10 D ys      Education Level:         Age at Enlistment:       AFQT: 61
MOS: 5937        Highest Rank:                   Fitness R eports:
Proficiency/Conduct M arks (# of occasions):      4.4/4.3 (9)
Awards and Decorations ( per DD 214): Rifle : MM, Pistol : , GCM, ICM, GWOTSM, SSDR x2, GWOTEM, NDSM, PUC, CerCom, CerApp, LoA.

Periods of UA / CONF :

NJPs :     1
         20041221: Art 112a ( W rongful possession of a controlled substance).
         Awarded - RIR (E2), FOP (1/2 month's pay for 2 months), RESTR EPD (30/30). Susp - FOP for 6
months.

6105 Counseling :
         20020520: For violation of UCMJ Article 92 ( F ailure to obey lawful order) by drinking underage.

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)

Package from attorney which includes 30 supporting documents to include much of Applicant's discharge package, excerpts from his Service Record Book, and several character references.

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

Applicant’s Issues
1. Clemency.
Decision

Date : 20 08 07 11 Location: Washington D.C . R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall Misconduct .

Discussion

: ( ) . The Applicant requests clemency based on his record of service, doubts raised about his actual involvement with marijuana, and discrepancies with the discharge process.

In regards to the Applicant's record of service, the Board did note the positive character references provided as well as above average proficiency and conduct remarks. An under other than honorable conditions discharge is warranted when significant negative aspects of a member's service outweigh the positive aspects. The Applicant's record was marred by a retention warning for underage drinking and a non-judicial punishment for wrongful possession of marijuana. Wrongful possession of a controlled substance is considered a serious offense for which a punitive discharge and imprisonment may be awarded if adjudged at a Special or General Court Martial. The Board Determined an upgrade to the Applicant's discharge would be inappropriate.

The Applicant 's attorney raised several doubts about his actual involvement with marijuana. 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 evidence the Applicant submitted was insufficient to overcome the presumption of regularity. Furthermore, the Applicant admitted his involvement on three separate occasions: he accepted non-judicial punishment thus admitting possession , he "recognize[d] the error of [his] ways in being involved with illegal drugs" in his CONDITIONAL WAIVER OF ADMINISTRATIVE DISCHARGE BOARD, and he admitted to making mistakes in his unsworn statement before the Adm inistrative Discharge Board. The Board determined the Applicant's possession of marijuana was properly documented prior to his discharge and an upgrade to his discharge would be inappropriate.

The Applicant's attorney also pointed out discrepancies with the discharge process. T he Board inferred from the petition there may be a question as to whether the Applicant was properly advised of his righ ts under Article 31 of the U niform C ode of M ilitary J ustice . Again, the Board presumes regularity of Government affairs. There is no indication in the record the Applicant's Article 31 rights were violated. In the CO, MASS 1 letter 1900 over CO dated 08 FEB 2005, the Applicant's attorney notes errors; the Board concedes there were errors on this letter but does not believe t hese errors were significant factors in the determination of the Applicant's dis c harge or characterization of service. The Applicant went before an Administrative Discharge Board on 13 MAY 2005, and the Board found by a vote of 3-0 the allegations of misconduct were supported by a preponderance of evidence and the Applicant should be separated from the Marine Corps under other than honorable conditions. Again, 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. T he Applicant could have produced evidence of a verifiable employment record, documentation of community service, evidence of a drug free existence, 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.

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 (wrongful possession of marijuana) .

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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USMC | DRB | 2008_Marine | MD0801296

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