Upgrade.Vet

USMC | DRB | 2008_Marine | MD0801569

Original file (MD0801569.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20080716

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)       20020604 - 20021021     Active:

Period of Service Under Review:
Date of Enlistment: 20021022     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20060324      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 03 D a y ( s )
Education Level:        AFQT: 43
MOS: 0621
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle Pistol w/1 Star

Periods of CONF : (20051209-20060101 (24 days))

NJP:

SCM:

- 20051209 :      Article 112a (Drugs - marijuana)
         Sentence: (20051209-20060101 (24 days))
         CA Action 20051209 Approved and ordered executed.

SPCM:

CC:

Retention Warning Counseling:

- 20041123 :      For disobeying a direct order. On 20041120, applicant was found crossing the U.S./Mexico border without a liberty chit. The order states that any Marine E-3 or below must have a buddy and a liberty chit to enter into Mexico.
- 20060118 :       For my illegal drug-related incident on 20051115. Specifically, marijuana (THC) usage identified through urinalysis and confirmed by NAVDRUGLAB message 20051201.

NDRB Documentary Review Conducted (date):        20080117
NDRB Documentary Review Docket Number:   MD 0 7-01168
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 : Three Certificates, a reference and Applicant’s statement.

Pertinent Regulation/Law

A. The 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 (drug abuse, wrongful use of a controlled substance).

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT
Applicant’s Issues
1. Discharge inequitable based on combat record and possible mental health related issues.
2. Applicant states he was never provided the opportunity to consult with counsel.

Decision

Date: 20090831 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 Summary Court-Martial (SCM) for of the UCMJ: 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 (in writing) on the Marine Corps Policy Concerning Illegal Use of Drugs on 30 May 2002. There is credible evidence in the record that the Applicant used illegal drugs via NAVDRUGLAB message 20051201. On 18 January 2006, the Applicant was seen by a substance abuse counselor, but refused a Medical Officer’s Evaluation (MOE). When notified for administrative separation processing, the Applicant waived rights to request an administrative board, but did elect to consult with qualified counsel and submit a written statement for consideration by the separating authority.

: (Decisional) ( ) . The Applicant contends his discharge was inequitable and that the NDRB should consider his good record of service, which included two combat tours that he now suffers from mental health issues. The NDRB advises the Applicant certain serious offenses warrant separation from the service in order to maintain good order and discipline. Violation of Article 112a is one such offense requiring mandatory processing, regardless of time in service or grade, for an administrative separation that usually results in an unfavorable characterization of discharge. Commanders may seek a punitive discharge for this offense if adjudicated and awarded as part of a sentence by a special or general court-martial. It is appropriate to note that most members of the Marine Corps serve honorably and earn their honorable discharges. Commanders and separation authorities are tasked to ensure that Marines receive no higher or lower characterization than is due. With regards to the Applicant’s mental health issues, he did note on his Post-Deployment Health Assessment (PDHA), dated 25 August 2005, that he was constantly on guard, watchful, or easily startled. Otherwise, nothing in his medical and service records, to include his separation physical, suggests a significant departure from the norm, nor did the Applicant provide the Board with any evidence of an existing mental health issue. Therefore, the evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

Issue 2: (Decisional) ( ) . The Applicant contends he was never afforded the opportunity to consult with counsel. He stated he thought he had talked to the unit’s adjutant for advice before signing any documents at the regimental offices, but he did not talk to a lawyer. During the Board’s review of this case, it was noted that the name on the Applicant’s “Acknowledgment of my Rights to be Exercised or Waived during Separation Proceedings” and “The Purpose and Scope of the NDRB/BCNR,” the attesting officer, Major S_, was a Judge Advocate for the regiment. The Board determined the Applicant was seen and briefed by qualified counsel, as defined by regulation, prior to signing any documents regarding his case and eventual discharge. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain . The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews .

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 | MD0801569

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