Upgrade.Vet

USMC | DRB | 2009_Marine | MD0901153

Original file (MD0901153.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20090330

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)       19941018 - 19950625     Active:

Period of Service Under Review:
Date of Enlistment: 19950626     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19970711      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 1 6 D a y ( s )
Education Level:        AFQT: 46
MOS: 3051
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (2) NDSM

Periods of UA / CONF :

NJP:
- 1997 0228 :       Article 112a (Drugs -marijuana)
         Awarded : Susp ended:

SCM:

SPCM:

CC:

Retention Warning Counseling :

- 19961203 :       For my illegal drug involvement, marijuana usage identified through urinalysis confirmed by NAVDRUGLAB JAXFL message 210112Z Nov 96 .

- 19970228: For NJP for violation of Article 112a (Drugs).

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. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective
31 January 1997 until 31 August 2001.

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. Misconduct was an isolated incident due to youth and immaturity.
2. Characterization of discharge has prevented the Applicant from securing employment opportunities.
3. Post service. Applicant has not used Marijuana since discharge and has been a productive citizen.

Decision

Date: 20 0 9 1022 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 and one for o f the Uniform Code of Mil itary Justice (UCMJ): Article 112a ( illegal drug use ). Based on the offense committed by the Applicant, command administratively processed for separation. When notified for a dministrative s eparation p rocessing, the Applicant waived rights to consult with qualified counsel, submit a written statement and request an a dministrative b oard .

: (Decisional) ( ) . The Applicant contends that his misconduct was an isolated incident and can be attributed to his youth and immaturity . While the Applicant may believe that this was the underlying cause of his misconduct, the record clearly reflects willful misconduct and demonstrates that he had no potential for further service. The evidence of record showed that the Applicant was responsible for his conduct and should be held accountable for his actions. The Applicant acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 17 October 1994 . Certain serious offenses warrant separation from the service in order to maintain good order and discipline. Violation of A rticle 112a requ ires mandatory processing fo r administrative separation , regardless of grade or time in service, which usually results in an unfavorable characterization of discharge. Violation of UCMJ Article 112a ( illegal drug use ) is considered a serious offense for which a punitive discharge and confinement is authorized if adjudged by a s pecial or g eneral c ourt -m artial. The command did not pursue a punitive discharge but opted instead for an administrative discharge. The Board determined an upgrade would be inappropriate.

: (Non Decisional) . The Applicant states that his characterization of discharge has prevented him from securing employment opportunities. The Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the a ddendum, Employment/Educational Opportunities , regarding this issue.

: (Decisional) ( ) . The Applicant contends that he has not used Marijuana since discharge and has been a productive citizen. However, other than the Applicants statement on the DD Form 293, he failed to provide any documentation or evidence on his behalf , though invited to do so through correspondence from the NDRB . The Applicant is directed to the a ddendum, Post Service Conduct , regarding this issue.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record and Discharge Process, the Board found

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 vetera ns 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 d ischarge 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 n aval 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 certificate s (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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USMC | DRB | 2009_Marine | MD0901153

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