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USMC | DRB | 2008_Marine | MD0801460
Original file (MD0801460.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080627
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)     19961011 - 19971006              Active:

Period of Service Under Review:
Date of Enlistment: 19980203     Period of E nlistment : Years Months     Date of Discharge: 20020202
Length of Service : Y ea rs M on ths 00 D a ys         Education Level:         Age at Enlistment:       AFQT: 35
MOS: 3533         Highest Rank:    Fitness R eports:
Proficiency/Conduct M arks (# of occasions): ( ) / ( )
 Awards and Decorations ( per DD 214): Rifle Pistol

Periods of UA / CONF :

NJPs :
20010326 : Art icle 123a (write 18 worthless checks worth $869.67)
Awarded : Susp ended:

20011121 : Article 112a (wrongfully used cocaine)
Awarded : Susp ended:

6105 Counseling :
19980722: For underage drinking.
 19990805: For PFT failure .
20010328: For writing 18 worthless checks.
 20010808: For operating a government vehicle under unsafe conditions that were the responsibility of the operator.
 20020111 : For illegal drug involvement.
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) :



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

Applicant’s Issues

 1. Not given a chance to prove his innocence.
2. Not given a chance to defend his case.
3. He was not diagnosed as being drug-dependant .
4 . Post-service conduct.

Decision


 Date: 20 08 0925             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 contends he did not have the opportunity to defend himself or to have a second urinalysis to prove his innocence. 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’s record of service was marred by 5 retent ion warning counseling’s and 2 NJPs for violations of the Uniform Cod e of Military Justice (UCMJ): Article 123a (Uttering checks without sufficient funds) and Article 112a (Drug use). These violations represent uttering worthless checks and illegal use of cocaine. Both of these violations are considered serious in natu re and could have resulted in a pun i tive discharge and confinement if adjudicated by a special or general court-martial. The command did not pursue a pun i tive discharge but opted instead for an administrative review. The record of evidence clearly shows the Applicant waived his right to a trial by Court-Martial by signing a page 12 entry dated 17 Oct ober 2001 ; he elected to accept NJP instead . Had the Applicant refused NJP he would have been tried by a Court-Martial where he could have mounted a defense.

For the edification of the Applicant, there is no provision in regulations to allow or require a second urinalysis to verify the results of a positive test. The positive result by itself is sufficient grounds for a court martial or NJP and administrative separation processing. Furthermore, it was noted the Applicant declined to speak with a lawyer during his administrative separation processing, in spite of being advised that doing so was in his best interests. The Board determined an upgrade would be inappropriate.

: ( ) . The Applicant contends his discharge should be upgraded since he was not diagnosed as being drug-dependent. The record of evidence shows the Applicant was screened by a doctor on 28 Sep tember 2001. The Applicant was not diagnosed as being drug-dependent, but the doctor’s opinion was the Applicant had used cocaine and should be held responsible for his actions. Again, f or the edification of the Applicant, the determination of drug-dependency is not relevant to the discharge process. It is only used to determine whether treatment is required for drug users prior to discharge. The Board determined an upgrade would be inappropriate.
: ( ) . The Applicant contends he is entitled to a discharge upgrade because of his post-service conduct. 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 NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation, which provides a 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 during Board reviews . Supporting documentation that could have been submitted for consideration by the Board include s , but is not limited to: evidence of a verifiable long-term employment record ; evidence of a drug-free existence; documentation of educational

pursuits; certification of non-involvement with civil authorities ; evidence of continuing volunteer or church service, and documentation of financial stability or evidence of good standing with financial institutions or credit card companies . 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.

The Applicant provided a personal statement and three reference letters from members of his community for the Board to consider for review. To warrant an upgrade to “Honorable” t he Applicant’s efforts need to be more encompassing. For example, he could have submitted more extensive verifiable documentation as discussed above, again with the understanding that submission of these documents does not guarantee an upgrade to a more favorable characterization of service. 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

Pertinent Regulation/Law

 A. Marine Corps Separation and Retirement Manual, (MCO P1900.16F ) , effective 1 September 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 and 123a .

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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