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USMC | DRB | 2009_Marine | MD0900986
Original file (MD0900986.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090310
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:         NONE              Active:  

Period of Service Under Review:
Date of Current Enlistment: 19980123     Age at Enlistment:
Period of E nlistment : Years
Date of Discharge: 20031018      H ighest Rank:
Length of Service:
         Inactive:        Y ea r ( s ) M on th ( s ) 25 D a y ( s )
         Active:  Y ea r ( s ) M on th ( s ) 27 D a y ( s )
 Education Level:        AFQT: 32
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      AFRM (W/”M” DEVICE) SMCRM

Periods of UA / CONF :

NJP:
- 20020702 :      Article 112a ( Drugs - cocaine)
         Awarded: Suspended:

SCM:

- 20030117 :       Art icle 107 (False official statement), 4 specifications
         Article 134 (Wrongfully impede an investigation)
          Sentence :

SPCM: CC: Retention Warning Counseling : NFIR

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. Decisional issue . The Applicant claims he unknowingly ingested cocaine .
2. Decisional issue. He was coerced into signing his confe ssion.
3. Decisional iss ue. He was not allowed counsel.
4. Decisional issue. H is punishment was harsher than other Marines with similar offenses.
5 . Decisional i ssue. Seeks p ost-s ervice conduct consideration.

Decision


 Date: 20 0 9 1029        Location: Washington D.C .         R epresentation :

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

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 g overnment al a ffairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. Th e Applicant’s record of service included nonjudicial ( ) for o f the Uniform Code of Mili tary Justice (UCMJ): Article 112a ( I llegal us e of drugs - cocaine ) , and summary court-martial (SCM) for of the UCMJ: Article 107 ( False official statement, 4 specifications , and Article 134 (Wron gfully imped ing an investigation). Documentation of a p re-service drug waiver and acknowledgment of complete understanding of the Marine Corps Policy Con cerning Illegal Use of Drugs were not found in the Applicant’s service record . Based on the Article 112a offense committed by the Applicant , processing for administrative separation was mandatory. When processed for administrative s eparation, the Applicant waived right s to submit a written statement and request an a dministrative b oard. He consulted with qualified counsel.

: (Decisional) ( ) . The Applicant states he was at a party and unknowingly drank beverages laced with cocaine. He provide d a statement from the party host , which support ed his claim. The results of the drug test on the Applicant’s specimen dated 15 August 2002 revealed an initial positive for cocaine with a concentration of 275 ng/ml. The DOD threshold level for a positive test for cocaine is 100 ng/ml . Even if the Applicant had unknowingly taken the drug, the effects of that level of cocaine would have been felt by the Applicant. In situations where illegal substances are mistakenly used, the Marine has an obligation to self-report this as soon as possible to proper authorities within his chain of command. The Applicant waited until the drug message which revealed his positive urinalysis was published before he mentioned the possible accidental cocaine use at the party. In a verbal statement made by the Applicant to his company 1 st s ergeant, he claims to have knowingly ingested cocaine at the party because he “ bowed to peer pressure . ” Additionally, he signed a written statement saying he used the drug to control pain he was experiencing from a m artial a rts i nstructor c ourse he recently completed. The Applicant was accused of later removing this statement from the 1 st sergeant ’s office and replacing it with one which the Applicant signed and dated June 17, 2002 , in which he simply admitted to testing positive for cocaine. The Applicant later recanted his admission and claimed he was coerced into saying what his 1 st sergeant wanted to hear . The Applicant provides no additional statements from witnesses to verify he was threatened physically and psychologically coerced by his 1 st sergeant into writing a confession.

Despite a service member’s prior record of se rvice, certain serious offenses, even though isolate d, warrant separation from the n aval service i n order to maintain good order and discipline —v iolation of Article 112a meets this standard . The evidence of record does not demonstrate the Applicant was not responsible for his conduct or he should not be held accountable for his actions. T he record clearly reflects his willful misconduct and demonstrated he was unfit for further service . When a service has been honest and faithful, it is appropriate to characterize that servi ce under honorable conditions. An Under Other Than Honorable Conditions discharge is warranted when a Marine commits or omits an act that constitutes a significant departure from the conduct expected from a Marine. The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of conduct expected of all Marines, regardless of grade and length of service and f alls far short of w hat is required for an upgrade in the characterization of service

Issue 3: ( Decisional) ( ) . The Applicant claims he was denied counsel. On his “Summary Court-Martial Acknowledgement of Rights and Waiver” paperwork signed on January 16, 2003, the Applicant acknowledges he has the right to see counsel, but state d that he d id not desire to consult with counsel. Later, on his “Acknowledgement of R ights during Separation Proceedings” paperwork dated 23 January 2003, the Applicant acknowledge d that he saw an attorney, and wrote in his counsel’s name . The record refute s the Applicant’s statement that he was denied counsel.

Issue 4: ( Decisional) ( ) . The Applicant states his punishment was unjust because Marines charged with similar offenses were not discharged. While other members of his unit may have been charged with the same or similar offenses, each case stand s on its own merits. The Commanding Officer is allowed to consider matters for extenuation and mitigation unique to each individual. Therefore , no two cases, no matter how similar, are guaranteed to receive the same punishment. The Applicant’s record reflects one NJ P and one SCM . The NDRB determined h is punishment was appropriate for his level of misconduct.

Issue 5: ( Decisional) ( ) . The Applicant provided : a personal statement , a real estate broker’s certificate , his resume , an undate d newspaper article on his post- service efforts , seven undated letters of reference, multiple certificates (i.e. , MCI cour se completion; high PFT scores), which show s in- service accomplishments , and 23 ( all dated in June 2002 ) as evidence of post-service accomplishments. Although his efforts to improve his life are noteworthy, he failed to provide adequate documentation and evidence on his behalf to support a thorough post-service conduct review . On page 4, Item 8, in the instructions for completion of DD Form 293, the Applicant is notified to submit evidence "which substantiate or relate directly to your issues in Item 6" (Issues: Why an upgrade or change is requested and justification for the request). Additionally, upon receipt of the Applicant's DD Form 293, the NDRB mails an acceptance letter that includes Information Concerning Review Procedures , which discusses the submission of additional documents in paragraph 3, Submission of Evidence , and in the last section on page 4, Information Pertaining to a Review Based Upon Post-Service Conduct . The Applicant should be aware that provision of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is rev iewed 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.

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 , October 18, 2003 . The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct .

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 .



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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