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USMC | DRB | 2009_Marine | MD0900993
Original file (MD0900993.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:         USMCR (DEP)       20000720 - 20010617     Active:  

Period of Service Under Review:
Date of Enlistment: 20010618     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20051031      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 14 D a y ( s )
Education Level:        AFQT: 59
MOS: 3533
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:

- 20020628 :       Article 92 (Failure to obey order or regulation), 2 specifications
         Article 86 (Absent from appointed place of duty)
          Awarded: Suspended:

- 20050329 :      Article 91 (Disrespectful)
         Article 107: (False official statement)
          Article 134 (Impersonat ing a noncommissioned officer)
         Awarded: Suspended:

- 20050809:      Arti cle 9 2 (Dis obey ing lawful order or regulation )
          Awarded: Suspended:

SCM:

- 20050812 :       Art icle 112a (Drugs - marijuana)
         Sentence :

SPCM:

CC:





Retention Warning Counseling :

- 20020628: For being dropped from the CH-46E Crew Chief Course of Instruction because you do not possess the personal attributes of a Plane Captain as set forth by the OPNAV 4790.2H. Subsequently, you are awaiting orders to another MOS p roducing school.

- 20050329 : For pattern of misconduct.
- 20050826 : For an illegal drug related incident on 20050613. Specifically, THC usage identified through urinalysis and confirmed by NAVDRUGLAB message 131833ZJun05.

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 .




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

Applicant’s Issues

 1. Wants to improve resume for job inquires.
2. Wants t o improve standard o f life.
3. Wants to improve status in the community.
4. No criminal trouble and has been an outstanding citizen since release.

Decision

 Date : 20 0 9 0903            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 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 reflects 6105 counseling warnings ; non - judicial punishments ( ) for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( A bsent from appointed place of duty) , Article 92 ( Failure to obey order or regulation, 3 specifications : consuming alcohol within 12 hours prior to his schedule d flight brief, underage drinking, and wearing an earring), Article 91 ( Disrespectful to a Sergeant “it’s none of your f**king business with what goes with my affairs ” ) , Article 107 (False official statement, “all fines were paid” which was false), and Article 134 (Impersonat ing a noncommissioned officer, ID card with the rank of E4/Cpl when he was a E3/LCpl ) ; and summary court-martial ( ) for of the UCMJ: Article 112a ( Wrongful use of controlled substance, marijuana ) , per NAVDRUGLAB message dated 131833ZJun05, the drug level in the Applicant’s system for marijuana was 67 ng/ml —the threshold for a positive test is 1 5 ng/ml . The Applicant signed and acknowledged complete understanding of the Marine Corps Policy Concerning I llegal Use of Drugs on 20000716 . Based on the Article 112a offense committed, processing for administrative separation was mandatory. When processed for administrative s eparation, the Applicant waived rights to consult with qualified counsel, submit a wri tten statement, and request an administrative discharge b oard.

: (Nondecisional) The Applicant contends he is looking for a better job, improvement in his standard of living, and to improve his status in the community. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment , quality of life or status in the community . Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

Issue 4: (Decisional) ( ) . The Applicant contends he has no criminal record and has been an outstanding citizen. Despite the Applicant’s post-service claim of being an outstanding citizen , there is no regulation that provides for an unfavorable discharge to be upgraded base d solely on good conduct or the passage of time . Other than the Applicant’s statement on the DD Form 293, he failed to provide any additional documentation and evidence on his behalf to support a 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’s statements alone, without sufficient documentary evidence, are not enough to form a basis of relief.

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




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 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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