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USMC | DRB | 2009_Marine | MD0901104
Original file (MD0901104.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090320
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)      19920306 - 19920427     Active: 

Period of Service Under Review:
 Date of Enlistment: 19920428     Age at Enlistment:
Period of Enlistment : Years Months
Date of Discharge: 19940518      H ighest Rank:
Length of Service: Year(s) Month(s) 21 D ay(s)
 Education Level:         AFQT: 38
MOS: 0311
Proficiency/Conduct Marks (# of occasions): ( ) / ( )   Fitness Reports:

Awards and Decorations (per DD 214): Rifle NDSM

 Periods of CONF: NONE
NJP:
- 19921117 :      Article 86 (UA 1800, 19921018 - 1200, 19921027 (9 days))
         Awarded: Suspended: Suspension vacated 19930115
- 19930107:      Article 86 (UA - Company formation)
         Awarded: Suspended: Appealed 19930107. Appealed denied 19930115.

- 19930716:      Article 123a (Uttering worthless checks)
                   Awarded: Suspended: Suspension vacated 19931019

 - 19931013:      Article 112a (Drugs - THC)
                   Awarded: Suspended:

SCM:

SPCM:

CC:

Retention Warning Counseling:

- 19930108 :      For poor judgment, immaturity, lack of initiative and motivation and UA.

- 19930714 :      For failure to comply with the UCMJ, financial irresponsibility, lack of physical endurance, fraud, frequent tardiness and lack of good judgment.

- 19930731:      For not being recommended for promotion due to recent NJP. Financial irresponsibility.

- 19930820:      For lack of integrity and lack of physical endurance.
-19931008:       For failure to comply with the UCMJ, illegal drug use, lack of judgment, and conduct unbecoming of a Marine.
Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “ UNDER OTHER THAN HONORABLE CONDITIONS ”
         “ MISCONDUCT ”

The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.
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. Paragraph 6210, Misconduct , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective
27 June 1989 until 17 August 1995.

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. Nondecisional. Would like to get VA benefits in order to improve opportunities for better employment.
2. Decisional. Punishment was too hard for a minor offense.
3. Decisional. Requests consideration for post-service accomplishments
Decision

Date: 20091008         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 five 6105 counseling warnings and four Non-judicial Punishment (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (UA), a second incident of Article 86 (UA), Article 123 (Uttering a worthless check) and Article 112a (Drugs – THC). The Applicant also had a pre-service drug waiver for using marijuana four times prior to entering the Marine Corps, and acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on March 02, 1992. Based on the offense committed, processing for administrative separation is mandatory. When processed for administrative separation, the Applicant consulted with qualified counsel, but waived his right to submit a written statement, and request an administrative board.

: (Nondecisional) The Applicant would like to obtain his VA benefits so he can better himself regarding employment opportunities. The Applicant is directed to the Addendum on , and employment/educational opportunities. 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. Likewise, t he 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.

: (Decisional) ( ) . The Applicant claims the punishment he received was too hard for the minor offense he committed. As stated above, within a 12-month period, the Applicant was the subject of five counseling entries aimed at improving his performance and four NJPs for: two separate periods of UA; for uttering a worthless check; and for use of an illegal substance, marijuana. While none of these incidents is considered minor, the Applicant’s use of illegal drugs is the most egregious of these offenses. Certain serious offenses warrant separation from the naval service in order to maintain proper order and discipline. The Applicant was fully aware of the Marine Corps’ zero tolerance policy for drug abuse and he acknowledged the consequences. His service record clearly reflects his willful misconduct and demonstrated he was unfit for further service. 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. A General (Under Honorable Conditions) characterization of service, as requested by the Applicant, is appropriate if the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance outweigh positive aspects of the member’s military record. However, a n Under Other Than Honorable Conditions characterization 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 repeated willful failure to meet the requirements of conduct expected of all Marines, regardless of his grade and length of service and falls far short of what is required for an upgrade in the characterization of service.

Issue 3 (Decisional) (Equity) RELIEF WARRANTED. The Applicant provided the NDRB with significant evidence regarding post-service rehabilitation. This documentation includes five current letters of references, transcripts of recent colleges course and multiple letters acknowledging outstanding achievement in commercial refrigeration courses, as well as certificates for accomplishment and achievement (highest test score) in related refrigeration course work. He presented proof of successfully completing CPR, Safety, Drug and Alcohol, Security Guard and Interpersonal Communications training programs. Additionally, the Applicant provided letters acknowledging time spent volunteering in both his local community, as well as for the Obama presidential campaign. The Board noted that, over the past 15 years, the Applicant devoted significant time and personal effort to becoming a more productive member of society and a better person.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, discharge process and evidence submitted by the Applicant, the Board found However, based on his considerable post-service efforts to rehabilitate and his contributions to society, the Board determined the awarded characterization of service shall be upgraded to General (Under Honorable Conditions) and the narrative reason for separation shall remain Misconduct.

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 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 Board for Correction of Naval Records (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 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 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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