Search Decisions

Decision Text

USMC | DRB | 2008_Marine | MD0801767
Original file (MD0801767.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080808
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)     20040504 - 20040719              Active:

Period of Service Under Review:
Date of Enlistment: 20040720     Period of E nlistment : Years Months     Date of Discharge: 20071019
Length of Service : Y ea rs M on th 10 D a ys         Education Level:        Age at Enlistment:
AFQT: 82          MOS: 0151         Highest Rank:    Fitness R eports:
Proficiency/Conduct M arks (# of occasions):       ( NFIR ) / ( NFIR )
 Awards and Decorations ( per DD 214): Rifle Pistol

Periods of UA / CONF : UA: 20070523-20070618 (27 days)
                 
CONF: 20070627-20070702 (12 days)
20070718-20070727 (10 days)

NJP :
- 20061219 : Art icle 112a ( Drug use, w rongful use of cocaine)
Awarded : Susp ended:

S CM :
- Unknown : Referenced in FIRST ENDORSEMENT on OIC MWSS-371, RBE ltr 190 0 of 16 Jul 07

SPCM:    CC : 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) :



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

Applicant’s Issues

 1. Record of service.
2. Completed substance abuse treatment program.
3. Discharge not processed expeditiously.

Decision


 Date: 20 08 1121             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 his discharge should be upgraded based on his isolated misconduct in an otherwise honorable record of service. Specifically he contends his proficiency and conduct marks, meritorious pr omotion to corporal and awards justify an upgrade. 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 one NJP for violation of the Uniform Code of Military Justice (UCMJ): Article 112a ( Drug use, w rongful use or possession of a controlled substance). The NDRB advises the Applicant certain serious offenses warrant separation from the service in order to maintain proper order and discipline. Violation of Article 112a is one such offense requiring mandatory separation regardless of time in service or grade. Violations of this policy result in , at a minimum, mandatory processing 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 record of evidence also includes a reference to a conviction for un specified charges at SCM held between 26 July 2007 and 13 September 2007. The Applicant’s DD-214 indicates the Applicant had lost time due to UA ( 23 May 2007 - 18 June 2007 ) and was confined twice ( 27 June 2007 – 2 July 2007 and 18 July 2007 – 27 July 2007 ) . The NDRB presumes th e SCM was for violation of Article 86 (UA) and resulted in the confinement listed above and reduction in rank from Corporal to Private. The NDRB determined the Applicant’s confirmed use of cocaine established the necessary basis for an “Under Other Than Honorable Conditions” separation for misconduct due to drug abuse and was appropriate; a n upgrade would be inappropriate.

: ( ) . The Applicant contends he is entitled to a discharge upgrade because he completed a substance abuse treatment program. For the edification of the Applicant, all Marines separated for drug abuse are screened for drug dependency and provided the option of treatment prior to separation. The intent of this treatment is for the benefit of the Applicant after discharge, not to rehabilitate the Applicant for continued service. The NDRB rejects the Applicant’s contention completion of substance abuse treatment entitles him to a discharge upgrade.

: ( ) . The Applicant contends he is entitled to a discharge upgrade because his discharge was not processed expeditiously. The NDRB rejects the Applicant’s contention. The Applicant was subject to NJP in December 2006. Before being discharged , ten months later , he completed substance abuse treatment and, according to his DD-214, was UA for 27 days and confined for 22 days. The NDRB determined the Applicant’s discharge was processed in a timely manner, especially in light of the events which occurred between his NJP and his 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 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 .

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 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 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

Similar Decisions

  • NAVY | DRB | 2008_Navy | ND0801376

    Original file (ND0801376.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to:Narrative Reason change to: Summary of Service Prior Service: Inactive: USNR (DEP)20050521 - 20051205Active: Period of Service Under Review: Date of Enlistment: 20051206Period of Enlistment: YearsExtensionDate of Discharge:20070307Length of Service: YearMonths02 DaysEducation Level: Age at Enlistment:AFQT:75Highest Rank/Rate:ETXNEvaluationMarks:Performance:NFIR Behavior:NFIROTA:NFIRAwards and Decorations (per DD 214):Periods of UA/CONF:...

  • USMC | DRB | 2008_Marine | MD0801076

    Original file (MD0801076.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. Record of service. ” Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the date of discharge.

  • NAVY | DRB | 2009_Navy | ND0900321

    Original file (ND0900321.rtf) Auto-classification: Denied

    The Applicant’s misconduct is clearly documented. ” Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the date of discharge. 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...

  • USMC | DRB | 2008_Marine | MD0801245

    Original file (MD0801245.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.Employment opportunities. ” Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the date of discharge. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.

  • USMC | DRB | 2008_Marine | MD0801907

    Original file (MD0801907.rtf) Auto-classification: Denied

    While the NDRB can appreciate the Applicant’s desire to make a better life for himself and his family, to warrant an upgrade the Applicant’s post service efforts need to be more encompassing and documented. ” Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the date of discharge. Additionally, the Board has no authority to upgrade a discharge for the...

  • NAVY | DRB | 2009_Navy | ND0900826

    Original file (ND0900826.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive:USNR (DEP)19960510 - 19960717Active: Period of Service Under Review: Date of Enlistment: 19960718Age at Enlistment:Period of Enlistment: YearsExtensionDate of Discharge:19970509Highest Rank/Rate:SRLength of Service: Year(s)Month(s)22 Day(s)Education Level:AFQT: 79EvaluationMarks:Performance: NFIRBehavior:NFIROTA: NFIRAwards and Decorations (per DD 214):Periods of UA/CONF:...

  • NAVY | DRB | 2009_Navy | ND0900176

    Original file (ND0900176.rtf) Auto-classification: Denied

    The Applicant provided no documentation in support of his request. The Board determined the characterization of service received, “Under Other Than Honorable Conditions”, was an appropriate characterization considering the length of service and the UCMJ violations involved, and based on the limited post-service documentation provided an upgrade would be inappropriate.After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, Discharge...

  • USMC | DRB | 2008_Marine | MD0801064

    Original file (MD0801064.rtf) Auto-classification: Denied

    Applicant’s Request: Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive: USMCR (DEP)19990317 - 19990608Active: 19990609 - 20031218 HON Period of Service Under Review: Date of Enlistment: 20031219Period of Enlistment: Years MonthsDate of Discharge:20060501Length of Service: Yrs Mths22 DysEducation Level: Age at Enlistment:AFQT: 55MOS: 6154Highest Rank: Fitness Reports: Proficiency/Conduct Marks (# of occasions): 4.3/4.3 (NFIR)Awards and...

  • NAVY | DRB | 2009_Navy | ND0900627

    Original file (ND0900627.rtf) Auto-classification: Denied

    Violation of Article 112a (Drug use) is one such offense requiring mandatory separation regardless of time in service, grade or record of service. ” Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the date of discharge. Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative...

  • NAVY | DRB | 2008_Navy | ND0801439

    Original file (ND0801439.rtf) Auto-classification: Denied

    The NDRB advises the Applicant that despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Navy in order to maintain proper order and discipline.However, in the Applicant case, the evidence reflects he committed numerous offenses during this enlistment, thus contradicting his allegation the discharge is based on one isolated incident.The Applicant's misconduct is documented in his service record, which is marred by...