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USMC | DRB | 2009_Marine | MD0902536
Original file (MD0902536.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090915
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)       19881109 - 19890926     Active:            19890927 - 19930926
         USMCR    19930927 - 19961108               USMC     20001122 - 20050513 HON
Period of Service Under Review:
Date of Current Enlistment: 20050514     Age at Current Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080613      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 00 D a y ( s )
Education Level:        AFQT: 35
MOS: 0369
Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (3) Pistol (2) (2) (4) (2) (2)

Periods of UA / CONF :

NJP:

SCM:

SPCM:

CC:

Administrative Corrections to the Applicant’s DD 214

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

          “ UNDER OTHER THAN HONORABLE CONDITIONS ”
         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 001122 UNTIL 050513 ”

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 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL , 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 IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications .

 C . 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.       Applicant seeks clemency in characterization of his service in order to find meaningful work to care for his family
2.       A pplicant contends that his act of misconduct was a single, isolated incident over a long, meritorious career and requests consideration for upgrade of his characterization of service to Honorable.
3.       The Applicant contends that his separation was overly harsh and that the service norm is an administrative separation for Misconduct – Drug Abuse, with an accompanying characterization of service based on the Applicant’s overall conduct in service.

Decision

Date : 20 10 0909            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. In the Applicant’s request for discharge review, he identified two decisional issues and one non-decisional issue for the Board. T he Board complete d a thorough review of the circumstances that led to discharge , and the discharge process , to ensure the discharge met the pertinent standards of equity and propriety.

In his last enlistment, t he Applicant’s record of service included one violation of the Uniform Code of Military Justice : Article 1 12a ( Wrongful use, possession, etc of controlled substances) , which was not adjudicated due to the Applicant ’ s request for separation in lieu of trial by Court-Martial.

T he Applicant ’s record reflected no pre-service drug use or moral waivers and did not contain a statement acknowledging his complete understanding of the Marine Corps Policy Concerning the Illegal Use of Drugs . However, the Applicant’s record reflects that he completed the Drill Instructor School, the Staff Non-commissioned Officer Advance d Course, the Staff Noncommissioned Officer Career Course, the Sergeants Course, and the Corporals Course . Each of these professional military education courses contain a detailed review of, and instruction on , the Marine Corps p olicy c oncerning i llegal use of d rugs as well as l eadership facets and the administrative requirements of enforcing the policy. As such, the Applicant’s service record aptly reflects a specific knowledge and understanding of the Marine Corps policy concerning illegal drug usage and the effects of violating that policy.

Violation of Article 112a is an offense requiring mandatory processing, regardless of time in service or grade, for an administrative separation that 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. Based on the specifics of this case, t he command opted to pursue a punitive discharge instead of an administrative discharge .
The NDRB reviewed the Applicant’s separation package and determined that the Applicant exercised his right to counsel, submitted a written statement, and exercised his right to request separation in lieu of trial by Court - Martial. Considering the nature of the pending offense and the Applicant’s record of service, the command accepted his request for administrative separation in lieu of trial by court - martial , and the Applicant was separated administratively from the service .

The Applicant provided documentation that included a copy of his Honorable Discharge certificate from his original period of service with the Marine Corps and a personal statement to the Board. The Applicant should be aware that submission of these items alone does not guarantee an upgrade from an unfavorable discharge . E ach discharge is reviewed by the Board , on a case-by-case basis , to determine if post-service conduct mitigates the reason for the characterization of discharge .

: (Nondecisional ) . Applicant seeks an upgrade in his characterization of service in order to find meaningful work to care for his family. 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 .

: (Decisional) ( ) . The Applicant contends that his illegal use of marijuana was an isolated incident in what was otherwise a long and meritorious period of service to his nation. As such, he requests an upgrade in the characterization of his service to Honorable to reflect more aptly his overall service. Despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain good order and discipline - violation of Article 112a meets this standard. The Applicant was fully aware of the USMC Drug Policy and the accompanying zero tolerance policy for illegal drug use; his record of professional military training and duty assignment as a Senior Drill Instructor in Marine Corps Recruit Training establishes his acknowledgement of this fact . While he may feel that this was an isolated incident , the record clearly reflects willful misconduct and demonstrate s he was unfit for further service. The evidence of record does not demonstrate the Applicant was not responsible for his conduct or he should not be held accountable for his actions.

In this specific case, the Applicant violated th at special trust and confidence imbued in him as a Senior Drill Instructor , whos e pledge is:
“ These recruits are entrusted to my care. I will train them to the best of my ability. I will develop them into smartly disciplined, physically fit, basically trained Marines, thoroughly indoctrinated in love of Corps and country. I will demand of them , and demonstrate by my own example, the highest standards of personal conduct, morality, and professional skill . ”
When a service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. An Under Other Than Honorable Conditions discharge is warranted when a Marine commits or omits an act that constitutes a significant departure from the conduct expected from a Marine. The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of conduct expected of all Marines, regardless of his grade and length of service and falls far short of what is required for an upgrade in the characterization of service. For this reason, t he Board determined that an upgrade in the discharge service characterization would be inappropriate.

: (Decisional) ( ) . The Applicant contends that his separation was overly harsh and that the service norm is an administrative separation for Misconduct – Drug Abuse , with an accompanying characterization of service based on the Applicant’s overall conduct in service. As such, he requests a narrative reason for separation change to reflect better the service norm (specific narrative to change to was not stated). Violation of Article 112a is a violation of the Uniform Code of Military Justice requiring mandatory processing for administrative separation , regardless of grade or time in service. This process usually results in an unfavorable characterization of discharge or , at a m aximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. In many cases, commands do not pursue a punitive discharge , but instead opt for the administrative discharge as a more lenient and expeditious means of separating the service member while ensuring the good order and discipline of the unit. While other service member s may have been administratively discharged with the same , or similar offenses, each individual case must stand on its own merits. The Commanding Officer is required to consider all matters for extenuation and mitigation , unique ly , to each individual and each case . Therefore , no two cases, no matter how similar, will receive the same process or punishment. In the Applicant’s case , the command exercised its right and obligation to ensure good order and discipline through trial by court martial g iven the unique circumstances of a Senior Drill Instructor receiving special duty pay and in a position of special trust and confidence, testing positive for illegal drugs . The Board determined that an upgrade in characterization or a change in narrative reason for discharge 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 the discharge was both proper and equitable. 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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