Upgrade.Vet

USMC | DRB | 2009_Marine | MD0901891

Original file (MD0901891.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20090623

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)       20061011 - 20061023     Active:

Period of Service Under Review:
Date of Current Enlistment: 20061024     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20090212      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 19 D a y ( s )
Education Level:        AFQT: 92
MOS: 0351
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

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

Periods of UA / CONF :

NJP:

- 20080912 :      Article (False official statement)
         Article 112a (Wrongfully possess a controlled substance and numerous syringes - Stanozolol, an illegal steroid)
         Awarded : Susp ended:

SCM: SPCM: CC:

Retention Warning Counseling :

- 20081021 :       For your recent conviction at NJP for violating Article 112a, wrongful possession of illegal 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 :

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

Applicant’s Issues

1. Steroids discovered during an illegal search.
2. Isolated incident.
3. Punishment inequitable. Applicant believes he should have been retained.
4. Applicant believes since charges were minor, and punishable at non-judicial punishment (NJP), he should not have been discharged.

Decision

Date: 20 10 0331 Location: Washington D.C . R epresentation :

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 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, for o f the Uniform Code of Military Justice (UCMJ): Article (False official statement , ), Article (Wrongful use, possession etc of a controlled substance : possession of steroids , ). The Applicant a pre-service drug waiver . acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 10 October 2006 . Based on the Article 112a violation , processing for administ rative separation is mandatory. When notified of a dministrative separation processing , the Applicant rights to consult with a qualified coun sel, submit a written statement and request an administrative board .

: (Decisional) ( ) . The Applicant contends the health and comfort inspection, during which the stero ids were discovered, was an illegal search and seizure. Further, the Applicant contends he had a reasonable ex pectation of privacy regarding the contents within his wall locker in which the steroids were discovered. Upon review of the record and evidence provided by the Applicant, the NDRB determined the Applicant’s rights were not violated b y an illegal search. There is no presumption of privacy while living in government supplied barracks. Military members are subject to the Uniform Code of Military Justice 24 hours a day, 7 days a week, 365 days a year no matter where they work or live. A commanding officer has the right to perform unannounced health and comfort inspections of military barracks and work areas to ensure the safety and well-being of the common good. Consent is not a factor when authorizing these inspections. T he Applicant’s contention that this was an illegal search does not have merit since his offenses were adjudicated at NJP , which is not bound by the same rules of evidence as court-martial proceedings. The NDRB found the Applicant’s issue to be without merit , so relief is denied .

: (Decisional) ( ) . The Applicant contends his misconduct was an isolated incident in an otherwise unblemished record of service. The NDRB advises the Applicant despite a service member’s prior record of service certain serious offenses, even though isolated, warrant separation from the Marine Corps in order to maintain proper order and discipline. Violation of Article 112a is one such offense requiring mandatory processing for administrative separation regardles s of grade or time in service. The NDRB determined an upgrade would be inappropriate.

: (Decisional) ( ) . The Applicant contends his punishment was inequitable and he should have been retained in the Marine Corps. Additionally, Applicant contend s that since the charges against him were minor enough to be punishable at NJP, he should not have been discharged. NJP provides commanders with an essential and prompt means of maintaining good order and discipline and allows for punishment without military members suffering the stigma of a court-martial. Additionally, g reat latitude is given to commanders in determining what constitutes a minor offense. The Applicant’s commanding officer chose to adjudicate the Applicant’s offenses at NJP and was well within applicable regulations, and his authority as a commander, to do so. The Applicant could have refused NJP and subjected himself to trial b y court-martial, but elected to accept NJP. For v iolation of Article 11 2a, processing for administrative separation mandatory . While the Applicant’s battalion chain of command recommende d he be retained, the regimental commander disagreed with this recommendation and recommended the commanding general separate the Applicant with an Under Other Than Honorable Conditions discharge . 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. However, his command did not pursue a punitive di scharge but opted instead for the more lenient administrative discharge. 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. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct .

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 .

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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USMC | DRB | 2009_Marine | MD0901891

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