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USMC | DRB | 2009_Marine | MD0902419

Original file (MD0902419.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20090826

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)       20050404 - 20050905     Active:

Period of Service Under Review:
Date of Current Enlistment: 20050906     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080314      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 09 D a y ( s )
Education Level:        AFQT: 94
MOS: 0651
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle (2) CoA CoC (IND AWD) LoA

Periods of UA / CONF :

NJP:

SCM:

SPCM:

CC:

Retention Warning Counseling:

- 20051108 :      For positive urinalysis for THC 20050924.

Administrative Corrections to the Applicant’s DD 214

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

“ GENERAL (UNDER HONORABLE CONDITIONS) ”
“ ”

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

Types of Documents Submitted/reviewed

Related to Military Service:
                  DD 214:          Service / Medical Record:          Other Records:

Related to Post-Service Period: None Submitted
         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 6203.3 CONVENIENCE OF THE GOVERNMENT, 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 .

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

Applicant’s Issues

1. Decisional issue ( Equity) : The Applicant contends that his discharge characterization of service was inequitable , because it was a Convenience of the Government separation without any reprimand, non-judicial punishment, or court - martial during the period of service; as such, Applicant contends that the characterization of service should be Honorable, vice General (Under Honorable Conditions).

Decision

Date: 20 10 0917 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 identified one decisional issue for the board but provided no documentation to rebut the presumption of regularity in government affairs. However, the Board conducted a detailed review of the Applicant ’ s discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety.

In accordance with chapter 6105 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) , the Applicant was formally counseled and warned about retention in the service in regards to a document ed positive drug urinalysis test ( result dated 24 September 2005 ), which confirmed the illegal use of marijuana on or about the date of shipping to recruit training. The Applicant ’s record reflects a pre-service drug waiver concerning the illegal use of marijuana at least four times prior to entering the Marine Corps and a signed, written acknowledg ment of his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs (01 April 2005). The confirmed illegal use of marijuana is a violation of the Uniform Code of Military Justice (UCMJ): Article 112a ( Wrongful Use Possession, etc . of Controlled Substances). By Marine Corps Policy, t his specific violation of the UCMJ requires mandatory processing for separation from the military service. Accordingly, the command could have administratively processed the Applicant for separation on the basis of Misconduct, Drug Abuse – a narrative reason for separation that is usually accompanied by an Other Than Honorable characterization of service. The NDRB presume s regularity in the conduct of govern mental affairs in that the Commanding General, Marine Corps Recruit Depot processed the Applicant for separation with an ultimate decision of retention . The Applicant’s record contains no other administrative or punitive disciplinary actions. Besides his statement on the DD Form 293 , t he Applicant provided neither documentation to rebut the government’s presumption of regularity in the conduct of governmental affairs nor any documentation re futing the narrative reason for separation .

: (Decisional) ( ) . The Applicant contends that his discharge characterization of service was inequitable because it was a Convenience of the Government s eparation without any reprimand , non-judicial punishment, or court - martial during the period of service; as such, Applicant believes that the characterization of service should be characterized as Honorable, vice General (Under Honorable Conditions).

Pursuant to paragraph 6203.3 of the MARCORSEPMAN , members may be processed for separation based on a mental health professional clinical diagnosis of a personality disorder when th at disorder is so severe that one's ability to function effectively and perform their duties is significantly impaired and the individual poses a threat to the safety or well being of themselves , or others. Separation for personality disorder is not appropriate when separation is warranted for any other reason (e. g., member meets minimum criteria for misconduct processing). The record of evidence reflects the Applicant met the requirements for processing due to Convenience of the Government (Personality Disorder) .

The Applicant has requested an upgrade in his characterization to Honorable. W hen the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under Honorable conditions. A G eneral (Under H onorable C onditions) characterization of service is appropriate if the member’s service has been honest and faithful , but significant negative aspects of the member’s conduct or performance outweigh the positive aspects of the member’s military record. Standards of performance and conduct a re determined by MCO P1610.7 series ( Performance Evaluation System ) , MCO P1070.12 series ( Individual Records Administration Manual (IRAM) ) , and the customs of the service . For an Honorable characterization of service, the m inimum acceptable average proficiency and conduct markings during an enlistment are 3.0 and 4.0 , respectively . The Applicant ’ s average proficiency and conduct marks, in service, were 4.5 and 4.6 . However, the Applicant ’ s confirmed use of m arijuana, after receiving a w aiver for entry in the service and after acknowledging his complete understanding of the Marine Corps Drug Policy , constitute d a significant negative aspect in the member ’ s conduct . Additionally, the members stated lack of willingness to remain in the service, coupled with his admitted alcohol abuse , and his continued resolve to be separated regardless of the command ’ s efforts to retain him , constitute negative aspects in his overall performance and conduct.

In accordance with the MARCORSEPMAN , t he reason for separation, the specific circumstances that form the basis for the separation, as well as the military record, shall be considered i n the issue of characterization. Generally, characterization is based upon the member’s overall performance and conduct during the current enlistment; however, there are circumstances where the conduct or performance of duty reflected by a single incident may form the basis of characterization. A single adverse incident that is prejudicial to good order and discipline may be used to characterize a s ervice m ember ’ s overall service. The single incident does not have to result in punishment ( N JP, court-martial, or civil conviction).

The Board determined the Applicant’s conduct, which forms the primary basis for determining the character of his service, reflected significant negative aspects in the conduct expected of a service member and the awarded characterization was appropriate; 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 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 | MD0902419

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