Search Decisions

Decision Text

USMC | DRB | 2009_Marine | MD0900289
Original file (MD0900289.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20081125
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)     20051017 - 20060102     Active:  

Period of Service Under Review:
Date of Enlistment: 20060103     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080221      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 19 D a y ( s )
Education Level:        AFQT: 46
MOS: 3531
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

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

SCM:

- 20071012 :       Art icle 112a (Drug use , w rongful use of a controlled substance , marijuana)
         Sentence : (20071012-20071104 (24 days))
         CA Action (20071012) The sentence is approved and will be executed.

Retention Warning Counseling :

- 20070912 :       For violation of Article 112a. SNM after being advised of his rights under Article 31, during an investigation conducted by NCIS, admitted to using controlled substances, specifically THC on several occasions in and around the grounds of barracks.

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 :


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

Applicant’s Issues

 1. Occupational benefits.
2. Change Reentry C ode to enlist in the National Guard.
3. Change S eparation Code.
4. No actual evidence of drug use except his personal statement which was extremely coerced.

Decision


 Date : 20 0 9 226             Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall MISCONDUCT .
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 Reenlistment/Re-codes regarding .

The Applicant requested the Separation Code (block 26) on his DD Form 214 be changed ; however, he did not state what the change should reflect. The separation code on the DD Form 214 is HKK1 (Drug abuse (board waived)) , he acknowledges waiving his board by initialing and signing his letter “ ACKNOWLEDGMENT OF MY RIGHTS TO BE EXERCIED OR WAIVED DRUING SEPARATION PROCEEDINGS. ” The DD Form 214 is an important record of service used by the Services for correctly identifying and reregistering their release or discharge from active duty military service. It is used for enlistment/reenlistment determination and by other Agencies in determining eligibility for employment or benefits and by the member to document their time in the service. Therefore, the DD Form 214 must be accurate and complete. Upon review the NDRB determined the DD 214 as it is now written reflects the correct Separation Code and the NDRB does not support a change to this code. T he Applicant may petition the Board for Correction of Naval Records (BCNR) in an attempt to change the Separation Code on his DD Form 214 should he feel it necessary to do so .

Issue 4: ( ) . The Applicant contends his discharge should be upgraded because there was no actual evidence except his personal statement . 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 one retention warning and one SCM for violation of the Uniform Code of Military Justice (UCMJ): Art icle 112a (Drug use, w rongful use of a controlled substance, marijuana) . The NDRB advises the Applicant certain serious offenses warrant separ ation from the service to maintain proper order and discipline. Violation of Article 112a is one such offense requiring mandatory separation regardless of time in service or grade. Violation of this policy results 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 di scharge and confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The command did not refer the Applicant for a punitive discharge but referred him to a SCM, and subsequently processed him for an administrative discharge.

The evidence of record shows the Applicant “admitted to using controlled substances, specifically THC on several occasions in and around the grounds of Barracks 5696 on Camp Foster” during an investigation conducted by NCIS. The member’s se lf-admission to drug use is considered as “wrongful use of a controlled substance” punishable under the UCMJ, Article 112a. T he evidence of record does not sh ow the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. T he Applicant did consult with counsel but did not request a hearing before an Administrative Discharge Board and did not include a written statement. If the Applicant felt he was coerced into making a statement, it

was his obligation to contest those charges at the time they were made. During a SCM or an adm inistrative separation board, the Applicant would have had the opportunity to mount a defense against the charges against him. The Applicant
submitted no evidence to support his contention; therefore the NDRB must rely upon the presumption of regularity in the conduct of government affairs. 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. 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; 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 Applicant DD Form 293 and the Alcohol Impact Certificate of Completion , no additional documentation was provided for review. 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. Sho uld the Applicant feel his post- service conduct becomes substantial enough to warrant 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 Entries, Discharge Process and evidence submitted by the Applicant, the Board found

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, wrongful use of controlled substances).

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 | 2009_Marine | MD0900137

    Original file (MD0900137.rtf) Auto-classification: Denied

    The Board determined the awarded discharge 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 lack of post service documentation provided an upgrade would be...

  • USMC | DRB | 2010_Marine | MD1001380

    Original file (MD1001380.rtf) Auto-classification: Denied

    This 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.Per the Marine Corps Separation and Retirement Manual (MARCORSEPMAN), all Marines identified for mandatory processing under the criteria of drug abuse will be processed for administrative separation on the first offense.Relief denied.Summary: After a thorough review of the...

  • NAVY | DRB | 2008_Navy | ND0801172

    Original file (ND0801172.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated to Military Service: DD 214: Service and/or 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 Member of Congress: Other Documentation (Describe): DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE...

  • USMC | DRB | 2011_Marine | MD1101513

    Original file (MD1101513.rtf) Auto-classification: Denied

    Clemency based on this issue alone is not warranted. 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...

  • NAVY | DRB | 2010_Navy | ND1002092

    Original file (ND1002092.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entriesand 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...

  • USMC | DRB | 2014_Marine | MD1400794

    Original file (MD1400794.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. 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...

  • NAVY | DRB | 2009_Navy | ND0900260

    Original file (ND0900260.rtf) Auto-classification: Denied

    Additionally, the Applicant’s counsel has submitted affidavits and in-service records for the Board’s consideration.The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge and characterization of service, if such a change is warranted. The Applicant’s counsel has requested an upgrade in the characterization of service to “Honorable ” . Therefore the request to remit the administrative discharge due to drug use...

  • USMC | DRB | 2008_Marine | MD0801387

    Original file (MD0801387.rtf) Auto-classification: Denied

    The Applicant has requested an upgrade because his discharge was “based on an isolated incident that does not portray [his] true character.” 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. ” Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the...

  • USMC | DRB | 2009_Marine | MD0900568

    Original file (MD0900568.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: Substance Abuse: Criminal Records: Family/Personal Status: Community Service: References: Additional Statements:From Applicant:From Representation: From Congress member: Other Documentation: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL...

  • USMC | DRB | 2009_Marine | MD0900771

    Original file (MD0900771.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: Substance Abuse: Criminal Records: Family/Personal Status: Community Service: References: Additional Statements:From Applicant:From Representation: From Congress member: Other Documentation: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL...