Upgrade.Vet

USMC | DRB | 2008_Marine | MD0801487

Original file (MD0801487.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20080707

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)     19951220 - 19951225     Active:

Period of Service Under Review:
Date of Enlistment: 19951226     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19981214      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 19 D a y ( s )
Education Level:        AFQT: 55
MOS: 5831
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:
- 19980716 :       Article 112a (Drug abuse, wrongful use of a controlled substance - M arijuana)
                  Awarded: Suspended:

- 19981123 :      Article 86 ( Unauthorized absence - 2 specifications )
                  Awarded : Susp ended:

SCM:

SPCM:

CC:

Retention Warning Counseling :
- 19980827 :       For my illegal drug involvement, marijuana usage identified through my voluntary statement to the Criminal Investigation Division.
- 19981103 :       For failure to obey order or regulation, by engaging in sexual activities, in BEQ 2002.

NDRB Documentary Review Conducted (date): 20030124
NDRB Documentary Review Docket Number: MD02-00667
NDRB Documentary Review Findings: Proper as issued and that no change is warranted.

Types of Documents Submitted/reviewed

Related to Military Service:
DD 214:      Service / 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 Congress member :

Other Documentation : College transcripts, criminal records, marriage license, financial docs, Ref’s

Pertinent Regulation/Law

A. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 January 1997 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 IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications .

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

Applicant’s Issues

1. The Applicant ’ s discharge does not accurately reflect her character of service.
2. The Applicant states her misconduct was due to mitigating circumstances .
3. The Applicant requests p ost-service conduct consideration.

Decision

Date: 2009 0826 Location: Washington D.C . R epresentation :

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

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service included 6105 counseling warnings and non-judicial punishments (NJPs) for o f the Uniform Code of Military Justice (UCMJ): Article 86 (Unauthorized absence: Failure to go at time prescribed - rifle range and place of duty) and Article 112a (Drug abuse, wrongful use of a controlled substance – Marijuana). The Applicant also had a pre-service drug waiver for using marijuana prior to entering the Marine Corps, and acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 28 November 1995 . Violation of Article 112a is one such offense requ iring mandatory processing, regardless of time in service or grade , for an administrative separation which usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The command did not pursue a punitive discharge but opted instead for an administrative discharge. When notified for a dministrative s eparation p rocessing, the Applicant waived rights to consult with qualified counsel, submit a written statement for consideration by the separating authority , and request an a dministrative b oard .

: (Decisional) ( ) . The Applicant contends her discharge does not accurately reflect her character of service. The NDRB advises the Applicant certain serious offenses warrant separation from the service in order to maintain proper order and discipline. The Applicant’s marijuana use was the result of her voluntary statement by her to the Criminal Investigative Division (CID) personnel (not by urinalysis) . Therefore, the Applicant violated the Marine Corps drug policy and thus was subject to mandatory processing for an administrative separation. Relief denied.

Issue 2: (Decisional) ( ) . The Applicant contends her misconduct was due to mitigating circumstances (personal problems and a sexual assault ) and therefore resulted in her being discharged. The Applicant states she was sexually assaulted by another Marine shortly after breaking-up with her fiancé. Based on the administrative counseling the Applicant received on 3 November 1998, either the incident didn’t happen or there was not enough evidence after an investigation to substantiate the alleged sexual assault. In the Board ’ s opinion, something did happen on the night in question, but there was not enough substantial evidence to further the case. Besides a statement the Applicant provided in rebuttal to a Page 11 entry, there is no other documentation to substantiate the events that transpired eight months prior . Additionally, the Applicant makes no mention of, nor provides documented proof that s he attempted to use any one of the numerous family support programs sponsored by or for military service members. These programs and services, such as Family Advocacy, Navy – Marine Corps Relief Society, Red Cross, the Chaplain, or even Navy medical health personnel if needed, all provide services to members of the military, regardless of grade, in times of need. Relief denied.

Issue 3: (Decisional) ( ) . The Applicant contends her post-service efforts are worthy of an upgrade and requests considera tion by the Board . The Applicant provided many forms of documentation to substantiate her post-service efforts. She provided transcripts of higher education in criminal justice; employment verification as a Sale s and Marketing Representative for a Financial Representative at Wachovia / Wells Fargo Advisors, LLC; spotless criminal and Department of Motor Vehicles records; marriage certificate and proof she is financially sound. Although the post-service efforts can never mitigate the misconduct of the Applicant, it does provide some insight on her character and whether the period of events in question was an aberration with respect to the rest of her record of service. The Board determined an upgrade would be appropriate.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found the discharge was proper and equitable at the time of discharge. However, based on the Applicant’s post-service efforts, the Board determined an upgrade would be appropriate. Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .

ADDENDUM: Information for the Applicant

Complaint Procedures : If you believe 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 : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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. There are veterans organizations such as the American Legion and the Association of Service Disable Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. If a former member has been discharged for more than 15 years, has already been granted 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. 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.

Employment/Educational Opportunities : The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB’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 BCNR can make changes to reenlistment codes. Additionally, the NDRB 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, 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 BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. 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. Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle. 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 accomplishments help demonstrate in-service misconduct was an aberration and not indicative of the member’s overall character.

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 NDRB 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 | MD0801487

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