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USMC | DRB | 2009_Marine | MD0900228
Original file (MD0900228.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20081107
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)     20000414 - 20000509     Active:            20000510 - 20031003

Period of Service Under Review:
 Date of Enlistment: 20031004     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20060308      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 05 D a y ( s )
Education Level:        AFQT: 53
MOS: 6821/0151
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle

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

Retention Warning Counseling:

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. 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 (Drug use).


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

Applicant’s Issues

 1. Veteran’s Administration (VA) considers both enlistments as “Under Other Than Honorable ” .
2. Government misconduct in the case against him.
3. Applicant not convicted by any military court.
 4. Command improperly awarded characterization based on misconduct committed during a prior e nlistment.
5. Applicant should have been promoted after charges were dismissed.
 6. Administrative Separation started due to Request Mast to the Base C ommanding O fficer .

Decision

 Date: 20 0 9 0223            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 he is entitled to a discharge upgrade because the VA considers his DD - 214, which covers the Applicant’s first enlistment and a portion of his second, as “Under Other Than Honorable Conditions” for the entire period, even though he satisfactorily completed his first enlistment. In reviewing discharges, the NDRB 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 n indictment by a grand jury for one count of bribery o f a public official and witness; specifically, the Applicant was charged with offering a U. S. Customs I nspector money in exchange for allowing certain cars to cross the U . S . and Mexico border without being inspected for illegal drugs. In accordance with regulations, the Applicant was processed for separation for illegal drug involvement. The NDRB advises the Applicant certain serious offenses warrant separation from the service in order to maintain proper order and discipline. 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 does not support the Applicant’s contention. His DD-214 clearly states “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 20000510 TO 20031003.” The NDRB determined the Applicant is credited with completing his first enlistment honorably. The Applicant should understand, however, t he VA may base their decision on entitlement to benefits on the Applicant’s final discharge characterization . The NDRB determined the awarded discharge characterization was appropriate ; an upgrade would be inappropriate.
: ( ) . The Applicant appears to contend he is entitled to a discharge upgrade because of alleged misconduct on the part of the Trial Counsel appointed to prosecute the Government’s case against him at a general court-martial . The NDRB rejects the Applicant’s contention. The Applicant was not tried by court-martial but was separated administratively because of his grand jury indictment. The record of evidence clearly shows the sole allegation considered by his Administrative Separation Board (ASB) was his grand jury indictment for one count of b r ibery of a public official and witness ; specifically, the Applicant was charged with offering a U. S. C ustoms I nspector money in exchange for allow ing certain cars to cross the U . S . and Mexico border without being inspected for illegal drugs. The record of evidence also shows the charges against the Applicant which led to referral to a General Court-Martial were dismissed and were not considered during his A SB. Moreover, the military judge’s ruling , which led to the dismissal of the charge , only bar red the introduction of testimony of a certain witness for the g overnment; no comment is made regarding the propriety of the charges against the Applicant. The NDRB determined the awarded discharge was appropriate and an upgrade would be inappropriate.

The NDRB notes the Applicant identified numerous points of contention with his discharge based on this alleged misconduct . The NDRB declines to address these points because these allegations of misconduct concern the referral to General Court-

Martial which was subsequently dismissed and had no influence on the outcome of the ASB.

: ( ) . The Applicant contends he is entitled to a discharge upgrade because “the government until this date, has fail (sic) to present to me or any court with the specification of alleged control substance defined by the MARINE CORPS SEPARATION AND RETIREMENT MANUAL 6001.13 . ..” ( The NDRB notes this should be 6002.13) . The Applicant appears to understand a conviction by a judicial or non-judicial proceeding is necessary to separate a Marine for misconduct for illegal drug involvemen t. The Applicant also appears to understand the wording in paragraph 600 2 .13 of the Marine Corps Separation and Retirement Manual (MCO P1900.16F) prohibits the government’s actions in his case. In response to this Issue, the NDRB will address these elements separately for clarity :

         - The Applicant should understand he was separated based on the A SB’s determination the preponderance of the evidence supported the Applicant’s illegal drug involvement as alleged by the government. The Applicant should also understand an A SB i s not a cour t of law established to determine guilt or innocence. The AS B , which heard the Applicant’s case , was charged with determining whether the preponderance of the evidence proves or doesn’t prove the allegation made by the government. In the Applicant’s case, the ASB found the allegations were proven. T he ASB was also obligated to make a recommendation whether to retain the Applicant in the Marine Corps or to separate him. The Applicant’s ASB recommended separation with an “ Under Other Than H onorable Conditions ” characterization. The Applicant’s command subsequently endorsed the AS B’s recommendations which were ultimately approved by the separating authority. The NDRB determined the Applicant’s A SB was properly conducted. The Applicant is directed to Paragraph 6304 of MCO P1900.16F for a complete description of the A SB procedures.

         - T he Applicant should also understand the authority for his separation comes from paragraph 6210.5 of MCO P1900.16F , not Paragraph 6002.13. Paragraph 6002.13 is a definition for Illegal Drug Involvement . T he G overnment properly used, as stated on the Applicant’s DD-214, Paragraph 6210.5 MISCONDUCT – Drug Abuse , as the authority for separating the Applicant. For clarity, the pertinent elements of paragraph are cited below :

         5. Drug Abuse

 a. Commanders shall process Marines for administrative separation for illegal, wrongful, or improper use, possession, sale, transfer, distribution, or introduction on a military installation of any controlled substance, marijuana, steroids, or other dangerous or illicit drug or other forms of substance abuse (such as designer drugs, fungi, chemicals not intended for
 human consumption, etc.) as defined in SECNAVINST 5300.28 series paragraph 5.c), and/or the possession, sale, or transfer of drug paraphernalia as defined in SECNAVINST 5300.28 series. Commanders shall also process Marines who attempt to engage in any of the aforementioned activities … . (Emphasis added)
The paragraph cited above clearly shows the government’s actions were proper given the allegations against the Applicant. The NDRB determ ined the Applicant’s contention is not supported by the record of evidence; an upgrade would be inappropriate.

: ( ) . The Applicant appears to contend he is entitled to a discharge upgrade because his characterization was based on allegations of misconduct which occurred during his previous enlistment. The NDRB must infer the substance of the Applicant’s contention since he refers to Paragraph 1004.4 a (1) of MCO P1900.16F which discusses limitations on characterization based on conduct during previous enlistments. The NDRB notes the date of the indictment used in the Applicant’s case is 24 August 2005 for actions between 30 July 2003 and 26 September 2003. The NDRB also notes the Applicant reenlisted on 4 October 2004. The Applicant should understand the grand jury indictment was handed down during his second enlistment, not during his first. Although the dates of the crime alleged occurred during his first enlistment, the charge which led to his separation is properly dated during his second enlistment. The NDRB determined the Applican t’s contention is without merit and the awarded discharge characterization was appropriate; an upgrade would be inappropriate.

: ( ) . The Applicant contends he should have been promoted to Sergeant after the charges against him were dismissed by the General Court-Martial convening authority. The NDRB cannot render any decision on whether the Applicant was unfairly denied promotion. The actions of the NDRB are limited to issues related to discharges. Therefore, the NDRB considered the Applicant’s Issue as a request for upgrade due to misconduct by the Applicant’s command following the dismissal of charges by the military courts. The Applicant is advised to petition the Board for Correction of


Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, to request this change. The NDRB determined the record of evidence does not support the Applicant’s contention. As explained to the Applicant in an email dated 9 April 2005 the Applicant’s SgtMaj correctly informed the Applicant he was ineligible for promotion because of pending civilian charges in accordance with the Enlisted Promotion Manual MCO P1400.32D paragraph 1204.3.z. T he NDRB determined an upgrade would be inappropriate.

: ( ) . The Applicant contends he is entitled to a discharge upgrade because his discharge process was initiated following his Request Mast to his Squadron Commander on 28 April 2005 and to the MCAS Commanding Officer on 26 July 2005. The record of evidence does not support the Applicant’s contention. The Applicant was informed on both occasions the decision to initiate administrative separation proceedings would be initiated if he was indicted in the civilian courts. The record shows the Applicant was indicted on 24 August 2005 in the United States District Court in El Paso, Texas. The Applicant was notified on Administrative Separation proceedings on 29 September 2005. The Applicant submitted evidence he was notified of separation proceedings on a prior occasion on 27 July 2005. The record of evidence clearly shows no action was taken regarding this notification. The NDRB determined 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 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

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