Upgrade.Vet

USMC | DRB | 2009_Marine | MD0900917

Original file (MD0900917.rtf) Auto-classification: Approved

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20090306

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)       20020701 - 20020825     Active:

Period of Service Under Review:
Date of Current Enlistment: 20020826     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20040924      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 29 D a y ( s )
Education Level:        AFQT: 41
MOS: 3531
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:
- 20040402 :      Article 112a ( Wrongfully distribute Percocet )
         Article 92 (Violate SECNAVINST 5300.28C, by distributing Amitriptyline pills)
         Awarded: Rescind MCMAP status Suspended: MCMAP

SCM:

SPCM:

CC:

Retention Warning Counseling:

- 20030204 :       For violating Article 92 of the UCMJ, specifically, violated the barrack SOP, DETO P11000.1 in that applicant allowed males to enter a female only barracks room and socialize.
- 20031230 :      For diagnosis of migraines, dizziness, and fainting, which interferes with duties, specifically, the inability to participate in rigorous exercises, conditioning hikes, and field duty.
- 20040402 :      For punishment at house hours on 20040402 for violation of Articles 112a and 92 of the UCMJ.

NDRB Documentary Review Conducted :       20060504
NDRB Documentary Review Docket : Number: MD05-01383
NDRB Documentary Review Findings:        Proper as issued and that no change is warranted.

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 :

Applicant Testified:
Applicant Available for Questions:
Witnesses:
Observers:

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 .

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

1.       Notification was improper for administrative action.
2.        Applicant’s conduct did not violate UCMJ.
3.        Post-service
4.        Applicant had a good military record.

Decision

Date: 2010 0324             Location: Washington D.C.        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall .

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service included 6105 counseling warnings, for o f the Uniform Code of Military Justice (UCMJ): Article (Wrongful use, possession etc of a controlled substance , ), Article (Failure to obey an order or regulation , ) . The Applicant a pre-service drug waiver for using marijuana prior to entering the Marine Corps, acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 25 June 2002 . Based on the Article 112a violation, processing for administrative separation is mandatory. When notified of administrative separation processing using the procedure, the Applicant rights to consult with a qualified counsel, submit a written statement and request an administrative board .

: (Decisional) ( ) . The Applicant contends she was improperly no tified of administrative action and her conduct did not violate the UCMJ . The Applicant was separated for violation of Article 112a for abuse and distribution of prescription medication. After thoroughly examining the evidence in the record and carefully considering the Applicant’s testimony , the NDRB concluded the Applicant’s use of prescription medication was properly prescribed and supervised by a medical officer. The NDRB found no credible documented evidence to support the allegations of improper use, possession or distribut ion of any controlled substance and agrees with the Applicant’s contention. The NDRB found it appropriate to grant an upgrade to Honorable and a change in narrative reason to Secretarial Authority.

: (Decisional) ( ) . The Applicant requested that the NDRB consider post service conduct as a basis for a more thorough understanding of her performance and conduct during the period of service under review. The Applicant submitted documentation of post service higher education pursuits, extensive community involvement including several certificates of recognition from the Key Volunteer Network, drug screening tests, letters from employers, criminal background check as well as several character reference letters from friends and associates in the community . The Board applauds the Applicant’s post-service conduct and efforts. The NDRB found the Applicant’s post-service commitment to community service, family life and personal improvement to be exemplary. The NDRB found an upgrade to Honorable to be appropriate in this case.

: (Decisional) ( ) . The Applicant contends her military record warrants an honorable discharge. The Applicant’s average proficiency and conduct (Pro Con) marks were 4.4/4.0 which are consistent with an Honorable discharge characterization. The NDRB noted the Applicant’s Pro Con marks were 4.4/4.3 prior to her NJP which ultimately resulted in her separation indicating good overall performance of duties . The NDRB concurs the Applicant’s record warrants an Honorable characterization of service.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries , discharge process, testimony and evidence presented by the Applicant , the Board found Therefore, the awarded characterization of service shall and the narrative re ason for separation shall change to .

ADDENDUM: Information for the Applicant

Complaint Procedures : If you believe 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 : 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. 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. There are veterans organizations such as the American Legion and the Association of Service Disable Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. 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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB’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 BCNR can make changes to reenlistment codes. Additionally, the NDRB 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, 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 BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. 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 support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (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 at 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 in-service misconduct was an aberration and not indicative of the member’s overall character.

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 NDRB 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 | MD0900917

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