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USMC | DRB | 2008_Marine | MD0801824
Original file (MD0801824.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20008018
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)    20020131- 20001126               Active:
Period of Service Under Review:
 Date of Enlistment: 20001127     Period of Enlistment : Years Months     Date of Discharge: 20050302
 Length of Service: Years Months 06 D ays        Education Level:        Age at Enlistment:     AFQT: 32
 MOS: 3531         Highest Rank:    Fitness Reports:
Proficiency/Conduct Marks (# of occasions):      /
Awards and Decorations (per DD 214): Rifle Pistol MUC

Periods of UA/CONF: SCM: SPCM: CC:

NJP:
         - 20010619: Article 86 (UA)
Awarded: FOP RESTR Suspended: FOP

         - 20010809: Article 134 (Uttering useless checks)
Awarded: RIR FOP Suspended: FOP

- 20040225 : Article 86 (UA)
Awarded: FOP/ RIR Suspended: FOP RIR RESTR/EPD

- 20041219: Article 86 (UA), 3 specifications
Article 92 (Disobeying a lawful order), 2 specifications
Article 112a (Drug use, illegal use of marijuana)
Awarded: FOP RIR RESTR EPD

6105 Retention Warning Counseling: 5

 - 20010618: For UA

- 20010801: For uttering worthless checks.

 - 20011204: For failure to maintain proper grooming standards.

- 20020708: For failure to operate his government motor vehicle properly.

- 20020727: For failure to obey regulations by failing to appear in traffic court.





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 Representation:     From Congress member:

Other Documentation (Describe):

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.


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

Applicant’s Issues

 1. Wants Medical and Educational benefits.
2. Claims he was unjustly discharged and his record of service was good.

Decision


 Date: 20081211   Location: Washington D.C.       R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall MISCONDUCT (DRUGS) .
Discussion

 : ( ) . either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum, specifically the paragraphs concerning and Service Benefits, regarding .

: ( ) . The Applicant claims he did not smoke marijuana and was denied the opportunity to present proof up his chain of command. 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. His service was marred by 5 retention warnings and 4 NJP’s for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (UA); Article 92 (Disobeying a lawful order); Article 134 (Uttering worthless checks); and Article 112a (Drug use, use of an illegal 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. Although he claims he did not knowingly smoke marijuana, the lab report shows THC levels of 22 Ng/ml for the Applicant; the testing cutoff level established by the Department of Navy is 15 Ng/ml. A thorough review of the Applicant’s record revealed a rebuttal statement to his administrative separation wherein he takes full responsibility for being in a club intoxicated to the point he did not know a female friend was “shot-gunning” him (blowing smoke from the illegal drug into his face).

The Applicant additionally states he was denied the opportunity to present his case to his chain of command and was talked out of a court martial by his first sergeant. The ACKNOWLEDGEMENT OF RIGHTS LETTER from the Applicant to the Commanding Officer of 8 th Communications Battalion dated 2 February 2005, is initialed and signed by the Applicant accepting the “Under Other Than Honorable Conditions” characterization. He chose not to see a counsel and not to have a hearing before an Administrative Separations Board. If the Applicant had thought he was innocent of drug use this was his opportunity to have a more formal review. However, he declined it.

The Applicant claims his 4 years of service were honorable and as such he has requested an “Honorable” discharge. For the edification of the Applicant, when a Marine’s service has been honest and faithful and has met the standards of acceptable conduct and performance of duty for military personnel, it is appropriate to characterize that service under “Honorable” conditions. An “Under Other Than Honorable Conditions” discharge is warranted when the basis for separation is commission or omission of an act which constitutes a significant departure from the conduct expected of a service member. Illegal drug use cannot be tolerated by any member of the Marine Corps regardless of grade or time in service. In accordance with Marine Corps, all Marines (regardless of pay grade) are processed for administrative separation by reason of misconduct, due to drug abuse on the first offense. The Board determined 5 retention warnings and 4 NJP’s, including one for drug use, represents a significant departure

from the conduct expected of a U. S. Marine and does not reflect “Honorable” service; the awarded discharge characterization was appropriate and an upgrade or change 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


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, provided 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 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 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.
Employment/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 for 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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