Upgrade.Vet

USMC | DRB | 2009_Marine | MD0900668

Original file (MD0900668.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20090127

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)     20010110 - 20010716     Active:

Period of Service Under Review:
Date of Enlistment: 20010717     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20050716      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 00 D a y ( s )
Education Level:        AFQT: 53
MOS: 3381
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle (2) (Iraq) PUC COC CO A

Periods of UA / CONF :

NJP:

- 20020124 :      Article 92 (Dr inking underage )
         Awarded: Suspended:

- 200 5 0 613 :      Article 112a (Drug use – m arijuana , 137 ng/ml )
         Awarded: Suspended:

SCM: SPCM: CC:

Retention Warning Counseling:

- 20010721 :       For underage drinking , in that you did on or about 0225/20020121 violate DetO P3000.1K to wit; No students under the age of 21 will consume alcoholic beverages while stationed at the Marine Corps Detachment.

- 20050615 :       For illegal drug involvement, THC usage identified through positive urinalysis on 20050523, confirmed by NAVDRUGLAB JAXFL message (R 27134Z May 05).

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 .

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

Applicant’s Issues

1. Employment and educational benefits.
2. Inequitable discharge based on an isolated incident and alcohol dependency.
3. Post-service conduct.

Decision

Date: 20 0 9 0423 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 paragraph concerning , regarding .

: ( ) . The Applicant contends his discharge was inequitable because his misconduct was an isolated incident and mitigated by his alcohol dependency. 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 two retention warning counseling ’ s and two NJPs for violations of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation – underage drinking) and Article 112a ( Drug use, w rongful use of controlled substances – marijuana). The Applicant also had a pre - service drug waiver for using marijuana four times prior to entering the Marine Corps and he acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 08 January 2001 . The NDRB advises the Applicant despite a service member’s prior record of service certain serious offenses, even though isolated, warrant separation 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. 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 did convene an Administrative Separation Board (ASB) on 06 July 2005 . The ASB voted 3-0 in all findings: there was a preponderance of evidence to support the Applicant’s misconduct; recommended for separation (separation not suspended ) ; recommended for an “Under Other Than Honorable” characterization; and not recommended for retention in the Individual Ready Reserves program .

On 20 June 2005, the Applicant was screened by a certified counselor from the Substance Abuse Counseling Center, Cherry Point, North Carolina, and did not appear to meet the cannabis or alcohol abuse/dependency criteria per The Diagnostic and Statistical Manual of Mental Disorders Text Revision (DSM IV TR) . Other than his first NJP early in his career, the NDRB could not find any other alcohol-related incidents and the Applicant did not provide any further documentation. The Applicant did provide documentation of a post-service diagnosis of post traumatic stress disorder (PTSD). However, the Applicant stated during his ASB he discussed his “stress with a chaplain when he returned from Iraq” but “did not use any other avenues of help.” T he NDRB could find no in-service diagnosis of alcohol dependence or connection with PTSD and his use of marijuana. While the Applicant may have increased alcohol consumption after his release f r om the military, documentation provided was not strong enough to support an upgrade in his discharge characterization based on illegal drug use. For the edification of the Applicant, alcohol is never a rationale or acceptable excuse for inappropriate conduct or poor judgment. The NDRB determined the record does not reflect the Applicant was not responsible for his actions or not accountable for his misconduct due to alcohol dependency or PTSD : The awarded discharge characterization was appropriate and an upgrade would be inappropriate.

Issue 3: ( ) . 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 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; attendance or completion of higher education (official transcripts); and documentation of alcohol non-dependency and 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.

In the Applicant’s rebuttal to his characterization, he stated he intended to work as a security guard at the Departme nt of Interior (DOI), s tart an intern program at the DO I’s Budget and Finance Department, as a Computer Clerk/Computer C ontrol Specialist, and enroll in Howard University. Besides the Applicant’s statement on the DD Form 293 and a copy of his PTSD diagnosis from the National Rehabilitation Hospital , he failed to provide any additional post-service documentation and evidence on his behalf. While the Board applauds the Applicant for taking accountability for his actions, the Board determined the evidence of post-service conduct was not sufficient enough to warrant an upgrade of his discharge characterization. To warrant an upgrade the Applicant’s post-service efforts needs 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 violation involved, and based on the limited post-service documentation provided an upgrade would be inappropriate. S hould 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 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 | 2012_Marine | MD1200091

Original file (MD1200091.rtf) Auto-classification: Denied

The Applicant contends his Administrative Separation Board (ASB) recommended his discharge be suspended.3. ” 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. 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...
USMC | DRB | 2012_Marine | MD1201040

Original file (MD1201040.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/ToCongress member: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD...
USMC | DRB | 2007_Marine | MD0700192

Original file (MD0700192.rtf) Auto-classification: Denied

Applicant claims his medical issues contributed to his misconduct and adverse discharge. (2) Wrongfully possess some amount of marijuana Article 112a: Wrongfully use marijuana.Date Applicant Submitted SILT request: 20051109 Consulted with or Waived Counsel: Acknowledged Understanding Elements: Acknowledged Guilt to: Article(s) 86 and 112a BCD/DD authorized for offense(s) Acknowledged Consequences of OTH: Type of Characterization Requested: Commanding Officer Recommendation...
USMC | DRB | 2009_Marine | MD0901735

Original file (MD0901735.rtf) Auto-classification: Denied

The Applicant provided documentation the U.S Department of Veterans Affairs (VA) rated him 100 percent for PTSD, but stated he could not receive paid treatment. However, the NDRB determined partial relief was warranted based on clemency and by majority rule, the NDRB voted to upgrade the discharge characterization to General (Under Honorable Conditions), but voted unanimously not to change the narrative reason for separation.Summary: After a thorough review of the available evidence, to...
USMC | DRB | 2008_Marine | MD0801909

Original file (MD0801909.rtf) Auto-classification: Denied

While PTSD may be a contributing factor for the Applicant’s alcohol dependence, the record does not reflect the Applicant was not responsible for his actions or should not be accountable for his misconduct due to PTSD or TBI.Based on: 1) the Applicant’s willful nondisclosure of his actual marijuana use and history of depression and treatment prior to enlisting, 2) his NJP for underage drinking,3) his drunk driving incidents and continuing alcohol incidents after his second treatment for...
USMC | DRB | 2009_Marine | MD0900933

Original file (MD0900933.rtf) Auto-classification: Denied

Article 112a is one such offense requiring, at a minimum, mandatory processing for an administrative separation, which usually results in an unfavorable characterization of discharge. The Applicant had complained of back problems, but medical professionals could not find anything wrong with his back.The NDRB determined the Applicant met the requirements for separation by reason of misconduct – drug abuse; his PTSD was not a factor at the time of his misconduct;and the awarded...
NAVY | DRB | 2009_Navy | ND0901762

Original file (ND0901762.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...
NAVY | DRB | 2009_Navy | ND0900146

Original file (ND0900146.rtf) Auto-classification: Denied

The Applicant was unable during any of these proceedings to convince either his CO or the ASB he either didn’t knowingly use cocaine or the lab test was in error. Especially found credible was the testimony of Mr. S. that the Applicant could have taken cocaine on the Friday or Saturday preceding the urinalysis and still tested positive at the levels indicated in the drug test administered on 14 November 2006. The NDRB determined the awarded discharge characterization was appropriate and an...
USMC | DRB | 2010_Marine | MD1000913

Original file (MD1000913.rtf) Auto-classification: Denied

Based on the offenses committed by the Applicant, command administratively processed for separation twice. Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain . ” Additional Reviews : After a document review has been conducted, former members are...
USMC | DRB | 2009_Marine | MD0901507

Original file (MD0901507.rtf) Auto-classification: Denied

After the Applicant’s NJP for drug abuse, he was processed for separation. ” 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. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their opportunities before the NDRB, the...

Search Decisions

Decision Text

USMC | DRB | 2009_Marine | MD0900668

Similar Decisions