Upgrade.Vet

USMC | DRB | 2009_Marine | MD0900068

Original file (MD0900068.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20081014

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)     20041213 - 20050123     Active:

Period of Service Under Review:
Date of Enlistment: 20050124     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070725      H ighest Rank:
Length of Service : Y ea rs M on ths 20 D a ys
Education Level:        AFQT: 32
MOS: 2111
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle Pistol ICM

Periods of UA : 200 70050 3-200705 30 (2 8 Days)
IHCA: 200705 31 -20070725 (61 Days)

NJP:
- 20070329 :      Article 86 (UA) Failed to go at the time prescribed to morning formation at 0700 on 20070309.
         Awarded: SUSP: NONE

SCM: SPCM: Retention Warning Counseling:

CC ( Arrested ) : 1
- 20070531: Was in an unauthorized absence status for a period of 28 days from the Marine Corps when arrested by the San Luis Obispo Police Dept for d omestic assault ; charges were not filed. However, he was w anted by the Los Angeles Police Dept for armed robbery charges at the time of arrest and was transferred to them, where he remained until discharged.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “ (23) 20070503-20070531, (55) 20070531-20070724 ”

The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.

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 :

Types of Documents Submitted/reviewed (cont)

Related to Post-Service Period (cont):

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 P1900.16E), 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 of the UCMJ : Article 86 (U A ) and Article 112a (Drug abuse, wrongful use/possession of a controlled substance).

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

Applicant’s Issues
1. Discharge unjust .
2. Mitigating circumstances .

Decision

Date: 20 0 9 0416 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 was unjust and was not consistent with the policies and traditions of the Marine Corps. 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 a NJP for violation of the Uniform Code of Military Justice (UCMJ): Article 86 (U A ). Furthermore , the Applicant was in an unauthorized absence status for a period of 28 days from the Marine Corps when arrested by the San Luis Obispo Police Dept for a domestic assault; charges were not filed. However, he was also wanted by the Los Angeles Police Dept for armed robbery charges at the time of his arrest and he was transferred in to the ir custody , where he remained in jail until being discharged form the Marine Corps .

In addition to the unauthorized absence and civilian armed robbery charges, the Applicant intentionally disobeyed Marine Corps policy by using and possessing illegal drugs. During an inventory of the Applicants gear, 36 white pills, suspected of being ecstasy by the Criminal Investigation Division, were found. The Applicant did not receive any disciplinary actions for his unauthorized absence, drug use or drug possession due to being in the hands of civilian authorities. For the edification of the Applicant, a service member may be separated based on commission of a serious military or civilian offense when the offense warrants separation and the offense would warrant a punitive discharge. There is no requirement for adjudication by judicial or non-judicial proceedings, but the offense must be substantiated by a preponderance of the evidence. The NDRB determined their was a preponderance of evidence in support of a discharge and the awarded discharge characterization was appropriate; an upgrade would be inappropriate.

: ( ) . The Applicant also contends the Marine Corps knew or should have known about his alcohol and drug problem and should have given him treatment for his addiction. The Applicant stated he “became addicted to alcohol and other drugs when I was in Iraq as a member of the Marine Corps.” The NDRB determined the Applicant was initially granted a drug waiver to enlist in the Marine Corps, thus giving him a second chance, and he signed a statement of understanding with regards to the Marine Corps Policy concerning illegal use of drugs upon enlistment . Second ly , alcohol is prohibited in Iraq, unless authorized by higher authority, for such special events as the Marine Corps Birthday, etc. On these rare occasions, the alcohol (beer only) distribution and consumption is contained in a very controlled environment, which the maximum number of beers allow ed per person is two. By the Applicants statement, he must have been illegally receiving and consuming alcohol against not only Marine C orps policy but CENTCOM policy in order to become addicted and hid his consumption from others in his command. The NDRB determined the Appl i cant’s claim of drug and alcohol use in Iraq as being without merit.

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 ( Drug use, w rongful use and possession of a controlled substance) is one such offense requiring mandatory separation regardless of time in service , grade or record of service . 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. The Board determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate.

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 o n the DD Form 293, he provide d a reference from “People in Progress” as evidence on his behalf. While the Board applauds the Applicant’s efforts to seek help , the Board determined the evidence of post-service conduct did not mitigate the misconduct w hich precipitated the discharge. 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. Should the Applicant obtain additional evidence or post service documentation he may wish to apply for a personal appearance. There are veteran’s organizations, such as the American Legion, willing to provide guidance to assist former service members in their efforts to obtain a discharge upgrade.

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 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, 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

USMC | DRB | 2011_Marine | MD1101558

Original file (MD1101558.rtf) Auto-classification: Denied

Relief denied.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 .The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. ” Additional Reviews : After a document review has been conducted, former members are...
USMC | DRB | 2012_Marine | MD1201173

Original file (MD1201173.rtf) Auto-classification: Denied

Types of Documents Submitted/reviewedRelated to Military Service: DD 214: Service/Medical Record: Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Rehabilitation/Treatment: Criminal Records: Personal Documentation: Community Service: References: Department of VA letter: Other Documentation: Additional Statements: From Applicant: From/To Representation: From/To Congress member: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD...
USMC | DRB | 2013_Marine | MD1301050

Original file (MD1301050.rtf) Auto-classification: Denied

The Separation Authority (Commanding General, Marine Corps Base Hawaii) disagreed with the recommendation to suspend the separation and ordered the Applicant to be discharged Under Other Than Honorable Conditions for Misconduct (Serious Offense). ” 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. Additionally,...
NAVY | DRB | 2012_Navy | ND1200306

Original file (ND1200306.rtf) Auto-classification: Denied

The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum , however, 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 establishes that the in-service misconduct was an aberration. The Board was not convinced that the documentation submitted by the Applicant demonstrates his in-service...
USMC | DRB | 2003_Marine | MD03-00157

Original file (MD03-00157.rtf) Auto-classification: Denied

MD03-00157 Applicant’s Request The application for discharge review, received 20021101, requested that the characterization of service on the discharge be changed to honorable. Pt was seen in the E.R. The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.
USMC | DRB | 2009_Marine | MD0900720

Original file (MD0900720.rtf) Auto-classification: Denied

The NDRB determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate.The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. 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...
USMC | DRB | 2009_Marine | MD0902169

Original file (MD0902169.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. He was twice arrested for underage possession of alcohol (received an enlistment waiver) and continued heavy regular use of alcohol following enlistment. ” 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...
USMC | DRB | 2001_Marine | MD01-01123

Original file (MD01-01123.rtf) Auto-classification: Denied

I had the back of my heel cut off and was lifted by helicopter from the accident to 29 palms naval hospital. Documentation In addition to the service record, the following additional documentation, submitted by the applicant, was considered:Medical Related Documents (48pgs) Letter from applicantPicture of applicant’s foot DD-214 PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Active: USMC None Inactive: USMCR(J) 970320 - 970805 COG Period of...
USMC | DRB | 2000_Marine | MD00-00143

Original file (MD00-00143.rtf) Auto-classification: Denied

Documentation In addition to the service record, the following additional documentation, submitted by the applicant, was considered:None PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Active: None Inactive: USMCR(J) 940929 - 950711 COG Period of Service Under Review :Date of Enlistment: 950712 Date of Discharge: 970620 Length of Service (years, months, days):Active: 01 11 09 Inactive: None After a thorough review of the records, supporting...
USMC | DRB | 2015_Marine | MD1501178

Original file (MD1501178.rtf) Auto-classification: Denied

The Applicant’s record of service included 6105 counseling warnings; for of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave; 4 days); and civilian arrest and conviction for attempts – specifically robbery, and carry of concealed firearm. Based on the offense(s) committed by the Applicant, command administratively processed for separation. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance...

Search Decisions

Decision Text

USMC | DRB | 2009_Marine | MD0900068

Similar Decisions