Upgrade.Vet

USMC | DRB | 2009_Marine | MD0900598

Original file (MD0900598.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20090113
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)    20020716 - 20030713     Active:

Period of Service Under Review:
Date of Enlistment: 20030714      Age at Enlistment:
Period of Enlistment : Years Months
Date of Discharge: 20070515       H ighest Rank:
Length of Service: Year(s) Month(s) 02 D ay(s)
Education Level:         AFQT: 50
MOS: 3531
Proficiency/Conduct Marks (# of occasions): ( ) / ( )   Fitness Reports:

Awards and Decorations (per DD 214):     Rifle Pistol (2) (2) ICM LoA

Periods of UA/CONF:

NJP:
- 20060605 :      Article 134 (Disorderly conduct - testing MRE bomb in the quarters of the female soldiers)
         Awarded: Suspended:

SCM:
- 20060522 :      Article 107 (False official statement)
         Article 112a (Drug use - marijuana - import and possess), 2 specifications
         Sentence: HARD LABOR FOR 45 DAYS
         CA Action 20060529 Sentence is approved and ordered executed.

SPCM: CC:

Retention Warning Counseling:

- 20050610 :      For reckless driving with an MTVR 7-ton truck. LCpl intentionally drove over a palm tree at Camp Hurricane Point. It has been determined that as a direct result of your actions, to include an error in judgment, you were responsible for the events which ended in the above mentioned accident. A great amount of responsibility is expected of you as a driver for the safety of both personnel and equipment. Although this accident did not result in any personal injury it very well could have; perhaps even loss of life. You are cautioned against operating a vehicle in a manner that you know is unsafe or that is even procedurally questionable.

- 20070119 :      For illegal drug involvement.

- 20070322 :      For my acceptance and attendance of substance abuse treatment. On 20070315, I was screened by a Substance Abuse Counselor and a Medical Officer from the Consolidated Substance Abuse Center for the

Retention Warning Counseling: (cont)

         usage, addiction, and dependency of an illegal substance. I have an assessment appointment on 20070402 with my counselor to set up a recovery and treatment plan.

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 Representation:     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 abuse).

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

Applicant’s Issues

1. Record of service.
Decision

Date: 20090409 Location: Washington D.C. R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall MISCONDUCT (DRUG ABUSE) .

Discussion

: ( ) . The Applicant takes issue with his characterization of service and feels he deserves an upgrade based on his record of service. 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 avers that his Under Other Than Honorable Conditions discharge does not reflect his character of service and therefore requests upgrade characterization of discharge Honorable. The Applicant’s record of service was marred by 3 retention warnings, 1 NJP and 1 SCM for violations of the Uniform Code of Military Justice (UCMJ): Article 107 (False official statement), Article 112a (Drug use - marijuana - import and possess) and Article 134 (Disorderly conduct - testing MRE bomb in the quarters of the female soldiers). The Applicant’s use of marijuana for “self-medication” does not supersede the UCMJ as a mitigating factor. 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 abuse) 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 Applicant states he requests an upgrade to get medical benefits, but does not state the specific details of his needs. The NDRB advises the Applicant the Veteran’s Administration (VA) announced a special access to VA enrollment available to combat veterans discharged under other than dishonorable conditions. The NDRB specifically advises the Applicant the VA determines the eligibility for enrollment independent of the Applicant’s characterization of service as determined by the Marine Corps. The Applicant is advised to contact his local VA for information. Alternately, he can call 1-877-222-8387 or visit http://www1.va.gov/opa/Is1/1.asp for more information.

For the edification of the Applicant, when the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under “Honorable” conditions. An “Under Other Than Honorable” conditions discharge is appropriate when the basis for separation is commission or omission of an act that constitutes a significant departure from the conduct expected from a service member. The Board determined violation of Article 112a is not indicative of service members who receive an “Honorable” discharge characterization and the awarded discharge was appropriate; 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, provided 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 granted 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.

Employment/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 for 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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USMC | DRB | 2009_Marine | MD0900598

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