Upgrade.Vet

USMC | DRB | 2009_Marine | MD0902373

Original file (MD0902373.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20090825

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)       20030403 - 20030727     Active:

Period of Service Under Review:
Date of Current Enlistment: 20030728     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20060404      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 07 D a y ( s )
Education Level:        AFQT: 57
MOS: 1391
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle MM

Periods of UA / CONF :

NJP:

- 20051129 :      Article ( 1 specification: Wrongful use , possession, etc of controlled substance, marijuana)
         Awarded: Suspended:

- 20060214 :      Article (Failure to obey order or regulation ; to wit, violation of lawful order while on restriction, consumption of alcohol in the barracks )
         Awarded: Suspended:

SCM:

SPCM:

CC:

- 20050927 :       Offense: A rrested and convicted in the state of New York for dr i ving under the influence ( DUI ) of alcohol with a BAC of .09, and driving without a license.
         Sentence : G uilty of DUI and driving without a license, by New York civilian court (NFIR) .

Retention Warning Counseling :

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 . Decisional issues : Applicant contends that his issues, which led to the administrative separation, were isolated incident s, not indicative of his entire service to include combat operations in Operation IRAQI FREEDOM. Applicant requests the NDRB consider his entire service career, Navy and Marine Corps Achievement Medal, and combat service during OIF 4-6 and upgrade his characterization of service from Other than Honorable to Honorable.

Decision

Date: 20 10 0827 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 identif ied one decisional issue to the Board regarding the equity of his characterization of service. T he Board complete d 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 for violating the Uniform Code of Military Justice (UCMJ): Article ( Wrongful Use, Possession, etc of a Controlled Substance - Marijuana , ) and Article ( Failure to Obey an Order or Regulation, ). Additionally, t he Applicant had a pre-service drug waiver for using marijuana at least five times prior to entering the Marine Corps . Furthermore, the Applicant acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 2 April 2003 . Based on the Article 112a violation , processing for administ rative separation was mandatory . When notified of a dministrative separation processing using the procedure, the Applicant consulted with counsel , unconditionally his right to an administrative board hearing, and elected to submit a statement for consideration, but failed to provide one.

: (Decisional) ( ) . Applicant contends that his drug use and Nonjudicial Punishments, which led to his administrative separation, were isolated incidents and not indicative of his entire service , to include combat operations in Operation IRAQI FREEDOM. Applicant requests the NDRB consider his entire service career, Navy and Marine Corps Achievement Medal, and combat service during OIF 4-6 and upgrade his characterization of service from Under Other than Honorable Conditions to Honorable.

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. Despite a Marine’s prior record of service, c ertain serious offenses warrant separation from the service in order to maintain proper order and discipline. Violation of Article s 112a and 92 are two suc h offense s . In accordance with the Marine Corps Policy on Drug Use, confirmed use of illegal drugs requires mandatory processing, regardless of time in service or grade, for an administrative separation . This processing usually results in discharge for Misconduct with an unfavorable characterization of service. A t a maximum, violation of A rticle 112a may result in punitive discharge and confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. An Under Other Than Honorable Conditions discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweighs the positive aspects of the member’s military record. The Applicant ’s service record was marred by two non-judicial punishments for violation of UCMJ Articles 112a and 92 . Each of these v iolations is a serious offense, punishable by punitive discharge and confinement .

Additionally, the Applicant’s record revealed a history of alcohol - related incidents , to include five separate command - documented incidents prior to his combat deployment to Iraq . Furthermore, while on p ost - combat leave, the Applicant was arrested by civilian authorities and found guilty of Driving under the Influence of Alcohol and driving without a license . T he s ervice member’s service record also reflects a pre-service waiver for at least five separate uses of marijuana and the admittance of the illegal use of marijuana while on post - deployment leave . Given the service record of the Applicant and all of his known conduct - related offenses, t he Applicant ’ s O ther T han H onorable discharge was proper and equitable. There is no evidence of impropriety, inequity , or procedural irregularities in the Applicant ’ s discharge ; the Applicant's misconduct wa s documented clearly . As such, the B oard determined that relief is not warranted and an upgrade would be inappropriate.

A ll service members separated for drug abuse are screened for drug dependency and provided the option of treatment prior to separation. The intent of this treatment is for the benefit of the Applicant after discharge, not to rehabilitate the Applicant for continued service.

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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USMC | DRB | 2009_Marine | MD0902373

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