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USMC | DRB | 2009_Marine | MD0902247
Original file (MD0902247.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090806
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)       20040521 - 20041024     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20041025     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070618      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 25 D a y ( s )
Education Level:        AFQT: 40
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of CONF : 20061120-20061201 (12 days), 20061202-20070201 (60 days)
NJP:
- 20050401 :       Article (Fail ure to obey an order or regulation by crossing the US-Mexico border without written authorization)
         Awarded: Suspended:

- 20061024 :      Article 90 (Willfully disobeying superior commissioned officer)
         Article (Failure to obey a lawful order)
         Awarded: Suspended:

- 20061114 :      Article (Unauthorized absence by failing to go to his appointed place of duty at the time prescribed )
         Awarded: Suspended:

SCM:

SPCM:

CC:
- 20060424 :       Offense: Offenses of possession of marijuana within 1000 ft of a school possession of a firearm during the commission of a felony, possession of a controlled substance, bringing contraband drugs into a jail/penal institution not charged
         Sentence : NFIR
- 20061129 :       Offense: O ne count of grand theft of property over $400.00 in value.    
         Sentence : Has been in the hands of civilian authorities and serving a one year sentence in a San Bernardino County Jail facility.



Retention Warning Counseling :
- 20060424 :       For the following deficiencies: Offenses of possession of marijuana within 1000 ft of a school possession of a firearm during the commission of a felony, possession of a controlled substance, bringing contraband drugs into a jail/penal institution not charged
- 20060508 :       For the following deficiencies: Offenses of possession of a controlled substance, possession of a firearm during the commission of a felony, unlawful possession of drug paraphernalia.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:
         
Block 3, Social Security Number, should read: “447 88 3465 ”
         “ 2004 10 25 ”
         “ 02 07 25 ”
        
The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.
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. Paragraph 6210, Misconduct of the Marine Corps Separation and Retirement Manual, ( MCO P1900.16F), effective 1 September 2001 until Present.

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 .

C. Fiscal Year 2010 National Defense Authorization Act, Section 512.


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

Applicant’s Issues

1. The Applicant seeks an upgrade for service benefits.
2 . The Applicant seeks an upgrade for educational opportunities.
 3 . The Applicant contends his misconduct , that led to his discharge , was due to his medical issues.

Decision

Date: 2010 1119 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 warnings, for o f the Uniform Code of M ilitary Justice (UCMJ): Article (Unauthorized absence by failing to go to his appointed place of duty at the time prescribed), Article 90 (Willfully disobeying superior commissioned officer), Article (Failure to obey an order or regulation - 2 specifications: crossing the US-Mexico border without written authorization and disobeyed an order by a Gunnery Sergeant) , an d civilian charges for offenses of possession of marijuana within 1000 f ee t of a school , possession of a firearm during the commission of a felony, possession of a controlled substance, bringing contraband drugs into a jail/penal institution , not charged . Furthermore, the Applicant was convicted of one count of grand theft of property over $400.00 in value, which required him to serve a one - year sentence in a civilian jail . The Applicant also had a pre-service drug waiver prior to entering the Marine Corps and acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 20 May 2004. When notified of administrative separation processing using the procedure, the Applicant exercised rights to co nsult with a qualified counsel and to submit a written statement for consideration by the separating authority, but waived his right to request an administrative board.

: (Nondecisional) The Applicant seeks an upgrade for service benefits and for educational opportunities. 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. Additionally, t he 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.
: (Decisional) ( ) . The Applicant contends his misconduct , which led to his discharge , was due to his medical issues. When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline. The NDRB generally does not consider the circumstances surrounding the Applicant’s stated condition, the implied incorrect diagnosis, nor the medical treatment given to the Applicant to be of sufficient nature to exculpate the Applicant’s misconduct. Based on all the misconduct ( 3 NJPs, 2 civilian convictions , and a domestic violence incident (labeled level IV abuse ) ) , t he NDRB determined that the evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Although the Applicant was diagnosed with Post - Traumatic Stress Disorder (PTSD), the NDRB cannot condone his widespread misconduct mentioned above, to include his use of methamphetamines, marijuana, cocaine , and downers , and does not believe that his PTSD served as a mitigating factor in his misconduct . In a personal statement to the Commanding General, the Applicant stated that his actions cannot be excused, and that they were a result of bad judgment, bad situations, and an unwillingness to let anyone help him. The NDRB determined that any mitigation based on his PTSD would not be appropriate . Relief denied.

The Applicant should refer to “Combat Veterans” at the Veterans Administration website ( http://www1.va.gov/opa/Is1/1.asp ) for additional help. Combat Veterans: Effective Jan. 28, 2008, veterans discharged from active duty on or after Jan. 28, 2003, are eligible for enhanced enrollment placement into Priority Group 6 (unless eligible for higher enrollment Priority Group placement) for 5 years post discharge. For additional information, call 1-877-222-VETS (8387).
This case was processed and adjudicated in accordance with Section 512 of the National Defense Authorization Act for Fiscal Year 2010.
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, Employment/Educational Opportunities, Service Benefits 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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