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USMC | DRB | 2008_Marine | MD0801940
Original file (MD0801940.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080923
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)       19990611 - 20000104     Active:  

Period of Service Under Review:
 Date of Enlistment: 20000105     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20010622      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 18 D a y ( s )
Education Level:        AFQT: 52
MOS: 0121
Proficiency/Conduct M arks (# of occasions): /          Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle LoA

Periods of UA :

NJP:
- 20000915 :      Article 91 (Insubordinate conduct toward a noncommissioned officer)
         Awarded: Suspended:

SCM:

SPCM:

- 2001XXXX :      Article 134 (Indecent exposure)
         Article 112a (Drugs - marijuana)
          Sentence: FOP RIR TO E-1 CONF 60 DAYS (20010309-20010414 ( 37 days) BCD

CC:

Retention Warning Counseling:

- 20000418 :       For the lost/theft of my Armed Forces Identification card (AFID) and the possible ramifications of that loss/theft.

- 20000915 :      For my recent NJP on 20000915 for violation of Article 91: Insubordinate conduct toward a noncommissioned officer.






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 :

Applicant Testified:
Applicant Available for Questions:
Witnesses:
Observers:




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

Applicant’s Issues

 1.       Discharge was too harsh.
2.       Post-service conduct.
Decision

Date: 2010 0407             Location: Washington D.C.        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall .
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 NAVPERS 1070/613 (Page 13) warnings ; for o f the Uniform Code of Military Justice (UCMJ): Article 91 ( Insubordinate conduct toward a noncommissioned officer ); and for of the UCMJ: Article 112a ( Wrongful use of controlled substance , marijuana ) , and Article 134 ( Indecent exposure to a female teacher ) . The Applicant a pre-service drug waiver for using marijuana ten times prior to entering the Marine Corps, acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 19990610. Based on the Article 112a violation, processing for administrative separation is mandatory. When notified of administrative separation processing, the Applicant rights to consult with a qualified counsel, submit a written statement and request an administrative board.

: (Decisional) ( ) . The Applicant contends his discharge was too harsh, because he was harassed by his fellow Marines and his chain of command ; he was being poked fun due to his sexuality; and he was being sexually harassed . Aside from his personal statement, t he Applicant did not submit any evidence to support his claim of any form of harassment by Marines or his chain of command . There is no evidence in the record, nor did the Applicant provide any evidence to indicate he attempted to utilize the numerous services available for service members who undergo personal problems during their enlistment such as the Navy Chaplain, Medical or Mental Health prof essionals, or Family Advocacy Programs, none of which were subject to approval by his chain of command.

The Applicant reported his dru g use to the chain of command. D espite a service member’s prior record of se rvice, certain serious offenses, even though isolate d, warrant separation from the n aval ser vice in order to maintain good order and discipline - violation of Article 112a meets this standard . The Applicant signed the USMC Drug Policy on 10 June 1999. He was fully aware there is a zero tolerance policy for drug abuse and he acknowledged the consequences. While t he may feel the alleged sexual harassment was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. Admission of drug use is grounds for mandatory processing for separation from the Marine Corps. The evidence of record does not demonstrate the Applicant was not responsible for his conduct or he should not be held accountable for his actions. An discharge is warranted when a Marine commits or omits an act that constitutes a significant departure from the conduct expected from a Marine. The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of conduct expected of all Marines, regardless of his grade and length of service and f alls far short of w hat is required for an upgrade in the characterization of service.

: (Decisional) ( ) . The Applicant contends his post-service conduct warrants consideration of an upgrade. The NDRB considers post-service conduct to determine of the misconduct committed during active duty was indicative of the Applicant’s character or an aberration. On page 4, Item 8, in the instructions for completion of DD Form 293, the Applicant is notified to submit evidence "which substantiate or relate directly to your issues in Item 6" (Issues: Why an upgrade or change is requested and justification for the request). Additionally, upon receipt of the Applicant's DD Form 293, the NDRB mails an acceptance letter that includes Information Concerning Review Procedures , which discusses the submission of additional documents in paragraph 3, Submission of Evidence , and in the last section on page 4, Information Pertaining to a Review Based Upon Post-Service Conduct . T he Applicant provided some documentation relating to post-service conduct: a police report, a letter from drug lab, a college transcript , and three character reference letters .
The Applicant's efforts need ed to be more encompassing. The Applicant could have provided documentation which coul d include but not limited to: verifiable employment record /letter of recommendation from his employers; evidence of a drug free life style (completion of rehab/proof he attended Narcotics Anonymous or AA meetings); evidence of financial stability (home ownership/home rental history, cre dit card payments); documentation of community service and if married, a marriage certificate. 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 Board determined the evidence of post-service conduct was not sufficient enough to form a basis of relief. Based on the Applicant’s record of service, testimony, and insufficient post-service documentation, the NDRB determined an upgrade would be inappropriate.

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 Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .
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 II, Para 211, Regularity of Government Affairs , Part V, Para 502, Propriety and Para 503, Equity .



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 Disabled American 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 their 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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