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USMC | DRB | 2009_Marine | MD0900048
Original file (MD0900048.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20081007
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)       20030222 - 20030223     Active:  

Period of Service Under Review:
 Date of Enlistment: 20030224     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20050211      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 18 D a y ( s )
Education Level:        AFQT: 42
MOS: 3521
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA: 20031218-20031227 (10 days)

NJP:
- 2003121 6 : Article 92 ( Failure to obey an order or regu lation), 2 specifications :
                           - Specification 1: U nderage drinking
                           - Specification 2: Driving while intoxicated
                  Awarded: CC U Suspended: Vacate suspension 20031229

- 20040109 :      Article 86 (U A)
                  Awarded: Suspended:

- 20041122 :      Article 112a (Drug ab use , wrongful use of a over-the counter drug - Coric i din HBR tablets)
                  Awarded: Suspended:

SCM: SPCM: CC:

Retention Warning Counseling:

- 20031216 :       For violation of Article 92 (2 specifications) of underage drinking and operating a POV aft er consuming alcohol o n or about 0040, 20031210 you were detained at the Main Gate of Camp Lejeune operating a POV under the influence of alcohol and underage drinking.

- 20040109 :      For violation of Article 86 (U A from 200 3 1218 to 20031228. By going UA you fled scheduled detention at the Correctional Custody Unit as awarded at a previous NJP on 200 3 1216.

- 20041119 :      For violation of Article 112a, poor judgment by wrongfully using an over the counter drug. Specifically, you were discovered ingesting approximately 16 tablets of Coricidin HBR for recreational use after being pulled over by a military police aboard MC Base Camp Lejeune for driving while impaired.

- 20041215 :      For violation of 112a, poor judgment by wrongfully using an over the counter drug. Specifically, you were discovered ingesting approximately 16 tablets of Coricidin HBR for recreational use after being pulled over by a military police aboard CLNC for driving while impaired.

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 :

Pertinent Regulation/Law

 A. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present.

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 s of the UCMJ, Article 86 (U A) , Article 92 (Failure to obey an order or regulation) and Article 112a ( D rug abuse, wrongful use of an over-the-counter drug).



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

Applicant’s Issues

 1. Youth, i mmaturity and personal problems .
2. Discharge too harsh .
3. In service and post service conduct.

Decision


 Date: 20 0 9 0507            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 problems in the Marine Corps can be attributed to mistakes made because he was young and had personal problems. 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 four retention warnings and three NJP’s for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (U A) , Article 92 (Failure to obey an order or regulation) and Article 112a ( D rug abuse, wrongful use of an over-the-counter drug). 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 , record of 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 command did not pursue a punitive discharge but opted instead for an administrative discharge based on his established pattern of misconduct.

While he may feel his youth was the underlying cause of his misconduct, the record of evidence does not demonstrate the Applicant was not responsible for his misconduct or should not be held accountable for his actions due to youth or immaturity. In addition, there are no indications that that the Applicant sought help for his personal problems. The NDRB recognizes that many of our service members are young at the time they enlist for service but still manage to serve honorably. While we understand some member’s may be less mature than others, the NDRB does not view a member’s claim of immaturity to be a mitigating factor or a sufficient reason for misconduct. The Board determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate.

: ( ) . The Applicant contends the discharge received was too harsh for the misconduct of record . Besides the violation of Article 112a, which usually results in an unfavorable characterization of discharge, the Applicant was charged with driving while intoxicated and UA. Although the Applicant claims he did not drink and was not impaired when he was pulled over at the f ront g ate by military police, the Board was not convinced by the Applicant ’s claim that nothing was wrong with him. Evidence in the record clearly demonstrates the military police dr ove the Applicant to his Battalion to be logged in rather than let him drive h imself . The P rovost M arshals O ffice is not charged with the mission of taxi ng service members back to their Battalion and would not take this precautionary step unless they felt the Applicant was not a b le to s afe ly drive himself. As for the UA, the Board ’ s opinion was the Applicant failed to f ulfill the sentence awarded at his previous NJP, which would have required him to attend the Correctional Custody Unit for 29 days , scheduled prior to the Christmas holiday break. Instead of fulfilling this obligation and disrupting his holiday, the Applicant entered into a UA status. The Boar d determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate.



Issue 3: (Equity) RELIEF NOT WARRANTED. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation, which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service. 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 help support a post service conduct upgrade includes, but is not limited to: A verifiable continuous employment record; marriage and children’s birth certificate (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; attending 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 previous in-service misconduct was an aberration and not indicative of the member’s overall character.

Besides the Applicants statement on the DD Form 293, he provided service-related documentation and congressional correspondence as evidence on his behalf. However, to warrant an upgrade the Applicant’s post service efforts need to be more encompassing. The Applicant could have produced additional evidence as stated in the above paragraph with the full understanding completion of these items alone does not guarantee an upgrade. 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, 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, 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 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 Board for Correction of Naval Records (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 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, 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 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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