Search Decisions

Decision Text

USMC | DRB | 2009_Marine | MD0901648
Original file (MD0901648.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request

Application Received: 20090527
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)       19990420 - 19990523     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19990524     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20030520      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 27 D a y ( s )
Education Level:        AFQT: 47
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle Pistol (2) MM CoC

Periods of UA / CONF :

NJP:

- 20030423 :       Article ( Wrongful use of amphetamine/methamphetamine)
         Awarded : Susp ended:


SCM: SPCM: CC:

Retention Warning Counseling :

- 20030423 :       For your misconduct which resulted in NJP on 20030423

NDRB Documentary Review Conducted (date):        20060131
NDRB Documentary Review Docket Number:   MD05-01190
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.












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 :     


Applicant Testified:
Applicant Available for Questions:
Witnesses:
Observers:

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 .
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 denies using illegal drugs and proffers he was wrongfully separated with an Under Other Than Honorable Conditions discharge which he believes to be too harsh.
 2. Post-service.
Decision

 Date: 20100616        Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall SECRETARIAL AUTHORITY .
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 governmental affairs 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 warning , for o f the Uniform Code of Military Justice (UCMJ): Article (Wrongful use, possession etc of a controlled substance , : methamphetamine , 8345 ng/ml and amphetamine 2610 ng/ml ). The Applicant a pre-service drug waiver for using marijuana fifteen times prior to entering the Marine Corps, acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 19 April 1999 . Based on the Article 112a violation, processing for administ rative separation is mandatory. When notified of administrative separation processing , the Applicant rights to consult with a qualified counsel, submit a written statement and request an administrative board.

The Applicant provided documentation which included: as a Deputy Sherif f for Davidson County Tennessee , , , , evidence of a drug and alcohol -free life style , financial st ability a nd certification of non-involve ment with civil authorities. The Applicant also submitted evidence of completion of a college degree , and substantial specialized training in law enforcement as well as docum entation of considerable community servic e , and a marriage certificate . The Applicant should be aware 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 if post-service conduct mitigates the reason for the characterization of discharge.

: (Decisional) ( ) . The Applicant denies using illegal drugs and proffers he was wrongfully separated with an Under Other Than Honorable Conditions . Additionally, he believes his characterization of service is too harsh. The Applicant submitted a polygraph test indicating truthful responses to questions regarding in service drug abuse. The test indicated the Applicant had not knowingly utilized illegal drugs. The NDRB found the Applicant’s testimony credible and consistent from the time of the offense to the present. After carefully considering the Applicant’s testimony, military record, evidence submitted and the reliability of polygraph tests in general, reasonable doubt he committed the misco nduct was established in the view of the NDRB. The NDRB found relief to be warranted on equitable grounds.

: (Decisional) ( ) . The Applicant requested that the NDRB consider post- service conduc t as a basis to gain a mo re thorough understanding of his performance and conduct during the period of service under review. The Applicant submitted substantial documentary evidence, as listed above, in support of post-service conduct review. In light of the considerable quantity and quality of evidence submitted by the Applicant, the NDRB found him to be an outstanding citizen in every particular. The NDRB views the Applicant’s misconduct of record as an aberration and not indicative of his overall character. Relief warranted on equitable grounds.

Summary: After a thorough review of the available evidence, to include the Applicant’s testimony, documentary evidence, summary of service, record entries and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative re ason for separation shall change to .


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 Disabled 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

  • NAVY | DRB | 2012_Navy | ND1200376

    Original file (ND1200376.rtf) Auto-classification: Denied

    Since the polygraph examination was prior to the administrative separation board, the Applicant would have had the opportunity to use this evidence during the administrative separation board. ” 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. There is no requirement or law that grants recharacterization solely...

  • NAVY | DRB | 2011_Navy | ND1101424

    Original file (ND1101424.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant contends he was innocent of the violations for which he was discharged, was prevented from providing testimony on his own behalf, was not shown any evidence to demonstrate any wrongdoing, was asked to take a polygraph but was never provided the opportunity to, and should not be punished for unsupported hearsay by a guilty party. ” Additional Reviews : After a...

  • NAVY | DRB | 2015_Navy | ND1401349

    Original file (ND1401349.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/To Congress member: Pertinent Regulation/Law A. On the contrary, the...

  • NAVY | DRB | 2011_Navy | ND1102172

    Original file (ND1102172.rtf) Auto-classification: Denied

    After a complete review of the Applicant’s service records and documentation he submitted, the NDRB determined the discharge for a Pattern of Misconduct Under Other Than Honorable Conditions was proper and equitable. ” 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...

  • NAVY | DRB | 2014_Navy | ND1400177

    Original file (ND1400177.rtf) Auto-classification: Denied

    Representation: By a vote of the Characterization shall .By a vote of the Narrative Reason shall .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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include...

  • NAVY | DRB | 2012_Navy | ND1200832

    Original file (ND1200832.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant seeks to reenlist.2. ” 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 does not have the authority to change a narrative reason for separation to one...

  • NAVY | DRB | 2009_Navy | ND0900014

    Original file (ND0900014.rtf) Auto-classification: Denied

    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 conduct mitigates the reason for the characterization of discharge. 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 ADDENDUM: Information...

  • NAVY | DRB | 2007_Navy | ND0700393

    Original file (ND0700393.rtf) Auto-classification: Denied

    The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service. The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge. Whenever a member is being processed through the Physical Evaluation...

  • USMC | DRB | 2011_Marine | MD1101139

    Original file (MD1101139.rtf) Auto-classification: Denied

    The Applicant then submitted a request for review of his discharge to the Naval Discharge Review Board (NDRB). After a thorough review of the available evidence, to include the Applicant’s service records, the record of trial by Special Court-Martial, the punitive discharge process, and the extensive documentation and testimony submitted by the Applicant, the NDRB found additional clemency was not warranted. ” Additional Reviews : After a document review has been conducted, former members...

  • NAVY | DRB | 2009_Navy | ND0900553

    Original file (ND0900553.rtf) Auto-classification: Denied

    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 previous in-service misconduct was an aberration and not indicative of the member’s overall character.While the Board applauds the Applicant’s post service efforts, the Board determined the evidence of post-service conduct was not sufficient to...