Search Decisions

Decision Text

USMC | DRB | 2009_Marine | MD0901507
Original file (MD0901507.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090506
Characterization of Service Received:
Narrative Reason for Discharge: PATTERN OF MISCONDUCT
Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to:

Summary of Service

Prior Service:
 Inactive:         USMCR (DEP)       19930219 - 19930720     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 1993 0721     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19970317      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 25 D a y ( s )
Education Level:        AFQT: 39
MOS: 0431
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle CoC MERITORIOUS MAST

Periods of C ONF : 19960814 – 19961105 (84 days)

NJP:
- 19950726 :      Article 112a (Drug abuse, wrongful use of a controlled substance: Marijuana )
         Awarded: Suspended:

- 19960814 :      Article 86 (Unauthorized absence: 2 specifications )
         Awarded: Suspended:

SCM:

SPCM:
- 19960814 :      Article 86 (U nauthorized absence: 2 specificati ons )
         Article 92 (Failure to obey a lawful order )
         Artic le 134 (Incapacitated for duty )
          Sentence: CONF 90 DAYS
CC:

Retention Warning Counseling:
- 19941201 :       For alcohol related incident, DUI/traffic accident (BAC .05)
- 19950822 :      For violation of Article 112a (Wrongful use of THC) resulted in NJP.
- 19960509 :      For completion of Level III Rehabilitation from 19960402 – 19960501. Assigned to aftercare.
- 19960816 :      Subject of SPCM on 19960814.
- 19961107 :      For pattern of misconduct.



Administrative Corrections to the Applicant’s DD 214

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

         “ 93 07 21 ”
         “ UNDER OTHER THAN HONORABLE CONDITIONS ”
         “ PATTERN OF 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 Representat ion :               From Congress member :    
         Other Documentation :      (Diplomas’: High school, AA, BA-Business)


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 .



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

Applicant’s Issues

 1 . The Applicant believes his post-service conduct is worthy of consideration for an upgrade.    

Decision

 Date: 20 10 0128            Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall PATTERN OF 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. T he Board did complete a thorough review of the circumstances which led to discharge and the discharge process to ensure discharge met the pertinent sta ndards of equity and propriety. The Applicant’s record of service included 6105 counseling warnings, nonjudicial punishment ( ) and a Special Court-Martial (SPCM) for o f the Uniform Code of Military Justice (UCMJ): Article 86 (Unau thorized absence: 2 specifications of failure to go to appointed place of duty on time), Article 92 (Failure t o obey an order or regulation: driving his personal vehicle on base after the command told him not to), Article 112a (Drug abuse, wrongful use of a controlled substance: Marijuana via NAVDRUGLAB message 242038z JUL 95 ) and Article 134 (Incapacitated for duty). The Applicant also had a pre-service drug waiver for using marijuana prior to entering the Marine Corps, and acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 15 February 1993. After the Applicant’ s NJP for drug abuse, he was processed for separation. He requested an administrative separation board (ASB), who voted to retain him, which was approved. He was screened and diagnosed for alcohol dependence and cannabis abuse. The Applicant was sent to Level III intensive impatient treatment, which he completed 1 May 1996. The Applicant continued to commit misconduct. He refused NJP and chose to appear before a SPCM, which he was found guilty of various charges and sentenced to confinement. While in the brig, the Applicant was charged with assault and again refused NJP. The command decided to process the Applicant due to pattern of misconduct. Again, the Applicant requested another ASB. By a vote of 3-0, the ASB found that the preponderance of the evidence supported the allegations, that he should be separated from the Marine Corps and that he should receive an Under Other Than Honorable Conditions discharge. While being processed from the Marine Corps, the Applicant again tested positive for THC (marijuana) on a urinalysis (NAVDRUGLAB message 052245Z MAR 97) . Although paperwork was drafted to bring additional charges against the Applicant, the command separated him without adjudicating the additional offenses in violation of the UCMJ.

: (Decisional) ( ) . The Applicant believes his post-service conduct is worthy of consideration for an upgrade. The Applicant provided documentation that he received higher education (Associates in Art and Bachelor in Business Administration degrees) and stated he started his own successful business. However, t o warrant an upgrade the Applicant’s post service efforts need to be more encompassing. The Applicant could have produced additional evidence per the paragraph Post-Service Conduct in the Addendum; with the full understanding completion of these items alone does not guarantee an upgrade. Relief denied.

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. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews 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 Disable d American 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 their 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

Similar Decisions

  • USMC | DRB | 2010_Marine | MD1000635

    Original file (MD1000635.rtf) Auto-classification: Denied

    Relief denied.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 . ” 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...

  • USMC | DRB | 2012_Marine | MD1200730

    Original file (MD1200730.rtf) Auto-classification: Denied

    ” During the Applicant’s enlistment, he was found guilty at NJP of violating UCMJ Articles 92 and 111 and received six 6105 retention warning counselings. Per the MARCORSEPMAN, the Applicant had a minimum of two incidents, received and violated 6105 warnings, and met the requirements for administrative separation processing for a Pattern of Misconduct. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided...

  • USMC | DRB | 2011_Marine | MD1101922

    Original file (MD1101922.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive:USMCR (DEP)20070306 - 20070318Active: Period of Service Under Review: Date of Current Enlistment: 20070319Age at Enlistment: Period of Enlistment: Years MonthsDate of Discharge:20100622Highest Rank:Length of Service: Years Months04 DaysEducation Level: AFQT:71MOS: 7234Proficiency/Conduct Marks (# of occasions):()/()Fitness Reports: Awards and Decorations (per DD 214):Rifle...

  • USMC | DRB | 2009_Marine | MD0902438

    Original file (MD0902438.rtf) Auto-classification: Denied

    Violation of Article 92 x 3 by disobeying the liberty order and riding in a government vehicle in an off duty status. ” 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. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.

  • USMC | DRB | 2011_Marine | MD1101332

    Original file (MD1101332.rtf) Auto-classification: Denied

    Relief denied.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. ” Additional Reviews : After a document review has been conducted, former members are...

  • USMC | DRB | 2012_Marine | MD1201583

    Original file (MD1201583.rtf) Auto-classification: Denied

    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. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum , however, completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine...

  • USMC | DRB | 2012_Marine | MD1201040

    Original file (MD1201040.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated to Military Service: DD 214:Service/Medical Record:Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Rehabilitation/Treatment: Criminal Records: Personal Documentation: Community Service: References: Department of VA letter: Other Documentation: Additional Statements:From Applicant: From/To Representation:From/ToCongress member: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD...

  • USMC | DRB | 2010_Marine | MD1001427

    Original file (MD1001427.rtf) Auto-classification: Denied

    Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, discharge process, and his personal statement, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain . ” 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...

  • USMC | DRB | 2009_Marine | MD0902232

    Original file (MD0902232.rtf) Auto-classification: Denied

    The NDRB determined an upgrade would be inappropriate.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. ” Additional Reviews : After a document...

  • USMC | DRB | 2010_Marine | MD1000238 (2)

    Original file (MD1000238 (2).rtf) Auto-classification: Denied

    Even if the 3rd DUI and IMPACT course attendance are taken out of the record, the Applicant had more than enough misconduct to warrant the ASB’s recommendations to separate him from the Marine Corps with an Under Other Than Honorable Conditions discharge. However, the NDRB determined that the ASB did not consider the Applicant’s NJP from his first enlistment when formulating their recommendation for the Applicant to receive an Under Other Than Honorable Conditions characterization of...