Upgrade.Vet

USMC | DRB | 2009_Marine | MD0902240

Original file (MD0902240.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20090811
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)       20010828 - 20020617     Active:

Period of Service Under Review:
Date of Current Enlistment: 20020618     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20060814      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 27 D a y ( s )
Education Level:        AFQT: 52
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle WITH COMBAT V (1)

Periods of UA / CONF : NO NE / 20051208-20051230 ( 23 days ); 20060509-20060612 ( 35 days )

NJP:

SCM:
- 20051207 :        Art icle (Drug abuse, wrongful use of a controlled substance : marijuana )
         Sentence: NFIR [ RIR to E-1 CONF 30 days is based on Applicant’s statement]

SPCM:
- 20060613 :       Art icle (Drug abuse, wrongful use controlled sub s tance s - 2 specifications : cocaine and marijuana )
         Specification 1: Wrongfully use cocaine (91455 ng/ml)
         Specification 2: Wrongfully use marijuana (287 ng/ml)
         Sentence : 60 Days HARD LABOR

CC:

Retention Warning Counseling :
- 20060509 :       For my illegal drug involvement, cocaine 91455, THC 287 use on 20060420, identified through urinalysis confirmed by NAVDRUGLAB San Diego, CA.

Administrative Corrections to the Applicant’s DD 214

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

         “ MARCORSEPMAN 1005 ”

The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.

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

Applicant’s Issues

1. The Applicant contends his discharge is inequitable based on his record of service and mental status (PTSD) at the time.
2. The Applicant believes his post-service conduct is worthy of consideration.

Decision

Date: 20110315 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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included 6105 counseling warning, Summary Court-Martial (SCM) for o f the Uniform Code of Military Justice (UCMJ): Article 112a (Drug abuse, wrongful use controlled substance: marijuana) , and one Special Court-Martial (SPCM) for o f the Uniform Code of Military Justice (UCMJ): Article 112a ( Drug abuse, wrongful use controlled substances - 2 specifications: cocaine 91455 ng/ml and marijuana 287 ng/ml). 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 27 August 2001 . Based on the Article 112a violation, processing for administrative separation is mandatory. However, the Marine Corps retained the Applicant until the end of his obligated service . Standards of performance and conduct as determined by MCO P1610.7 series ( Performance Evaluation System ) , MCO P1070.12 series ( Individual Records Administration Manual (IRAM) ) , and customs of the service form the primary basis for determining characterization of service. Minimum acceptable average proficiency and conduct markings during an enlistment are 3.0 and 4.0 , respectively. Failure of a Marine to achieve either of these standards is evidence of significant negative aspects. Marines who do not achieve these standards should not receive an H onorable discharge.

: (Decisional) ( ) . The Applicant contends his discharge is inequitable based on his record of service and mental status (PTSD) at the time. The Applicant implies that he completed his obligated service, to include two tours to Iraq, and that he deserves an upgrade despite his misconduct, because it was due to PTSD. The NDRB carefully examined the Applicant’s medical and service record to consider the extent to which a mental health issue might affect his performance and ability to conform to the military’s standards of conduct and discipline. When reviewing a discharge, the NDRB generally does not consider the circumstances surrounding th e Applicant’s stated condition , nor the medical treatment given to the Applicant , to be of sufficient nature to exculpate the Applicant’s misconduct. The Applicant was convicted at a SCM and a SPCM for use of illegal drugs. Standards of discipline in the Marine Corps would typically have resulted in a Bad Conduct discharge given the Applicant’s multiple uses of illegal drugs. The NDRB determined that, due to the Applicant’s meritorious service in combat, he was allowed to continue to the end of his obligated active service and was given a General (Under Honorable Conditions) discharge. A fter a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the discharge action resulting in the characterization of the Applicant’s service. Relief denied.

: (Decisional) ( ) . The Applicant believes his post-service conduct is worthy of consideration. Although the Applicant provided character references and other documents from his record of service, he failed to provide any documentary evidence on his behalf for post-service consideration. To warrant an upgrade, the Applicant’s post - service efforts need to be more encompassing. The Applicant could have produced additional evidence as stated in the Post-Service Conduct paragraph in the Addendum with the full understanding completion of these items alone does not guarantee an upgrade. The Board determined the characterization of service received was an appropriate characterization considering the UCMJ violations involved. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and 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 .

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 Representation:               From Congress member :
         Other Documentation:

Pertinent Regulation/Law

A. Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present,
Paragraph 1005, DISCHARGE FOR EXPIRATION OF ENLISTMENT OR FULFILLMENT OF SERVICE OBLIGATION .

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 | MD0902240

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