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USMC | DRB | 2009_Marine | MD0901946
Original file (MD0901946.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090618
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)       20050923 - 20051016     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20051017     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070810      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 24 D a y ( s )
Education Level:        AFQT: 49
MOS: 3531
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:

- 20070802 :       Article (Failure to obey an order or regulation)
         Specification 1: Attempted to enter MCAS Beaufort without a valid base sticker.
         Specification 2: On 20070726, drove vehicle on base without insurance.
          Article (Disobedience, repeated lack of concern for rules and regulations).
         
         Awarded : Susp ended:


SCM: SPCM: CC:


Retention Warning Counseling :

- 20060504 :       For violation of Article 92 (underage consumption of alcohol).
- 20070621: For illegal drug involvement, specifically marijuana usage identified through NAVDRUGLAB msg 130852Z Apr 07.
- 20070810: For illegal drug involvement and receiving an RE-4B reenlistment code.







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 never made a statement of guilt regarding illegal drug use.
2. The Applicant wa s denied counsel at his hearing and was denied an administrative board.
3. There were irregularities in the urinalysis process.
4. Change RE code to RE-1.
5. Applicant wishes to be reinstated with full back pay and original date of rank.

Decision


 Date: 20 10 0415            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 (Failure to obey an order or regulation , : Attempt to enter MCAS Beaufort without a valid base sticker, drove vehicle on base without insurance ), Article (Disobedience and repeated lack of concern for rules and regulations , ). The Applicant a pre-service drug waiver . acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 22 Sept 2005 . 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 he never made a statement of guilt regarding illegal drug use. The record reflects the Applicant tested positive for marijuana in the amount of 25 ng/ml confirmed by Naval Drug Lab message dated 13 April 2007. The DoD c oncentration for the purposes of establishing a positive urinalysis test for marijuana is 15 ng/ml. The Applicant was properly notified of separation due to drug abuse on 21 June 2007. The Applicant’s command recommended separation with a General (Under Honorable Conditions) characterization of service. However, the commanding general, and separation authority, disagreed with this recommendation and issued an Under Other than Honorable Conditions characterization of service. The NDRB advises the Applicant a statement of guilt is not required to establish misconduct in the case of a positive urinalysis. C ertain serious offenses warrant separation from the service in order to maintain proper 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 di scharge but opted instead for the more lenient administrative discharge. The NDRB found the Applicant’s issue to be without merit. A n upgrade would be inappropriate .

: (Decisional) ( ) . The Applicant contends he wa s denied counsel at his hearing and was denied an administrative board. The record shows the Applicant did not receive a hearing before an administrative board. The record reflects the Applicant waived his rights to consult with counsel, request a hearing before an administrative separation board and make a written statement in rebuttal to his proposed separation in his Acknowledgment of Rights to be Executed or Waived dated 21 June 2007. The Applicant was provided proper opportunity to be represented by counsel.

: (Decisional) ( ) . The Applicant contends t here were irregularities in the urinalysis process. The NDRB carefully examined evidence in the record regarding the urinalysis procedure and found no issues of impropriety or inequity. The Applicant provided no additional evidence to refute the evidence of record.

: (Nondecisional) The Applicant wishes to change his RE code to RE-1. 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. The Applicant is referred to the addendum, Reenlistment/RE-code , for further information regarding this issue.

: (Nondecisional) Applicant wishes to be reinstated with full back pay and original date of rank. Regulations limit the NDRB’s review to a determination of the propri ety and equity of the discharge issued. T his issue does not serve to provide a foundation upon which the Board can grant relief.
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 .



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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