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USMC | DRB | 2009_Marine | MD0901532
Original file (MD0901532.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090512
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

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

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       20070320 - 20070327     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20070328     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070910      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 13 D a y ( s )
Education Level:        AFQT: 70
MOS: Basic Marine
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:
- 20070807 :      Article 112a (Drugs)
         Awarded: Suspended:

SCM: SPCM: CC:

Retention Warning Counseling :

- 20070807 :       For NJP on 8 Aug 2007 for violation of Article 112a. Positive urine sample for THC 89ng/ml .

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.       The Applicant desires to reenlist in the military.
2. Believes he should be given a second chance .
3. Discharge should be u ncharacterized since he served less than 180 days.
4. Seeks p ost-service conduct consideration.
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 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. The Applicant’s record of service included 6105 counseling warnings and for o f the Uniform Code of Mil itary Justice (UCMJ): Article 112A (Wrongful use, possession of a controlled substance , 1 specification). 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 Conc erning Illegal Use of Drugs on 20070314 . Based on the Article 112a o ffense committed by the Applicant, processing for administ rative separation wa s mandatory. When process ed for a dministrative s eparation, the Applicant waived rights to consult with qualified coun sel, submit a written statement and request an a dministrative discharge b oard .

: (Nondecisional) The Applicant wishes to reenlist in the military. Since the NDRB has no jurisdic tion 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. The Applicant is referred to the addendum, reenlistment/RE-code for further information regarding this issue.

: (Decisional) ( ) . The Applicant contends his misconduct was not severe enough to be denied a second chance. The record shows the Applicant acknowledged complete understanding of the Marine Corps Policy on illegal drug use—zero tolerance. The NDRB advises the Applicant that certain serious offenses warrant separation from the service in order to maintain good order and discipline. Violation of Article 112a is one such offense requiring mandatory processing for administrative separation regardless of grade or time in service. This usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The command did not pursue a punitive discharge but opted for a more lenient administrative discharge. The NDRB determined an upgrade would be inappropriate.

: (Decisional) ( ) . The Applicant desires the NDRB to consider changing his discharge characterization to u ncharacterized since he served less than 180 days. The record shows that the Applicant was separated with five months, thirteen days of service and was still in entry level status. However, a ccording to t he Marine Corps Separation and Retirement Manual , separation for a Marine in entry - level status shall be uncharacterized when characterization of service under other than honorable conditions is not warranted. I f the Marine has committed misconduct ( such as violation of Article 112a ) the characterization of service normally shall be under other than honorable conditions . Specifically, with regard to Article 112a violations, commanders shall process the Marine for separation unless rehabilitation and retention are warranted . The record clearly shows the Applicant’s misconduct warranted an under other than honorable conditions discharge characterization despite being in an entry - level status. The NDRB also noted that , p er his service record, the Applicant expressed his desire to be separated from the Marine Corps, refused screening and evaluation by the Substance Abuse Rehabilitation Program staff and was found to have no potential for further service. The NDRB found an upgrade to uncharacterized would be inappropriate.

: (Decisional) ( ) . The Applicant desires for the NDRB to consider his post - service conduct to gain a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. The Applicant submitted two drug screening tests as proof of a drug - free lifestyle as well as a 2008 W-2 form as proof of steady employment and financial stability. Additionally, the Applicant provided correspondence from the Board for Correction of Naval Records (BCNR) showing that he has previously requested a reenlistment (RE) code upgrade from the Commandant of the Marine Corps and BCNR. Both of these requests were denied. While the NDRB appreciates the Applicant’s post - service efforts, to warrant an upgrade, his post - service conduct needs to be more encompassing. The Applicant could have produced additional evidence as stated in the addendum, post service conduct , with the full understanding that completion of these items alone does not guarantee an upgrade. The NDRB determined the characterization of service received, Under Other Than Honorable Conditions, was appropriate considering the length of service and the UCMJ violations involved. Based on the limited post service documentation provided, an upgrade would be inappropriate.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, discharge process and evidence submitted by the Applicant , 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, 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 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

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