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USMC | DRB | 2009_Marine | MD0902547
Original file (MD0902547.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090909
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)       20060531 - 20070603     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20070604     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20090420      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 17 D a y ( s )
Education Level:        AFQT: 64
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle ( X 2) , , ( X2 ) , ,

Periods of CONF :

NJP:

- 20080121 :      Article (Wrongfully using canned air to induce intoxication)
         Awarded: Suspended:

- 20090213 :      Article (Failed to go to appointed place of duty : failed to attend 0630 morning formation )
         Awarded: Suspended:

SCM:

SPCM:

CC:

Retention Warning Counseling :

- 20080121 :       For failing to obey SECNAVINST ( 5350.4 D ); wrongfully using canned air to induce intoxication.

- 20080412 :       For leaving your post without being properly relieved, giving a Marine a PSP to play on post while standing that post, and disrespect toward noncommissioned officer.






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 .

C. Secretary of the Navy Instruction 5300.28D , Military Substance Abuse Prevention and Control , dated 05 December 2005.



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

Applicant’s Issues

 1 .       Decisional issues : (Equity) Applicant contends that his discharge characterization of service was inequitable as the misconduct occurred prior to his honorable service in a combat zone.

Decision

Date : 20 10 0930            Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall SECRETARIAL AUTHORITY .
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. T he Board complete d a thorough review of the circumstances that led to the Applicant’s discharge , and the discharge process , to ensure the discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included two 6105 retention counseling warnings and two nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey an order or regulation , ) and Article 86 ( Absence without leave , ) . The Applicant ’s service record reflects no pre-service drug us e waivers and that he had acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs , in writing, on 5 June 2006 .

The NDRB reviewed the Applicant’s administrative separation package to determine the Applicant ’s election of rights as related to administrative separation. When notified of the administrative separation processing using the notification procedure, the Applicant elected to waive his rights to consult with a qualified counsel, to submit a written statement, or to request an administrative discharge board hearing. Due to an administrative error, the General Court - Martial Convening Authority conducted a second notification of rights in regard s to the Applicant’s election o f rights prior to his review and final determination.

The Applicant provided additional documentation for consideration by the board that included a Department of Veterans Affairs discharge determination for eligibility of VA benefits.

: (Decisional) ( Propriety/Equity ) RELIEF WARRANTED . The Applicant contends that his discharge characterization of service was inequitable . T he misconduct , which led to his discharge and the characterization of his service , occurred prior to his outstanding service in a combat zone ( Operation IRAQI FREEDOM ) . The Applicant contends that the isolated misconduct was mitigated by his subsequent honorable combat service .
The NDRB reviewed the Applicant’s administrative discharge package and record of service for matters of both propriety and equity . T he Applicant was discharged administratively from the Marine Corps for Misconduct - Drug abuse . In accordance with paragraph 6210.5 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN ) :
Commanders shall process Marines for administrative separation for illegal, wrongful, or improper use, possession, sale, transfer, distribution, or introduction on a military installation of any controlled substance, marijuana, steroids, or other dangerous or illicit drug or other forms of substance abuse (such as designer drugs, fungi, chemicals not intended for human consumption, etc.) as defined in SECNAVINST 5300.28D [ Secretary of the Navy Instruction, Military Substance Abuse Prevention and Control]
SECNAVINST 5300.28D defines drug abuse to include substance abuse . The SECNAVINST further define s substance abuse to include the intentional inhalation of fumes or gases of intoxicating substances with the intent of achieving an intoxication effect on the user’s mental or physical state . As such, the Applicant’s nonjudicial punishment for violation of A rticle 92 of the UCMJ (violation of SECNAVINST 5300.28D) and subsequent recommendation for administrative discharge for drug abuse was proper in policy and fact.

The Applicant was found guilty at a Battalion - level N JP for violation of a lawful order or regulation , specifically, “huffing canned air” with the intent to become intoxicated in violation of SECNAVINST 5300.28D . The Battalion Commander r educed the Applicant in rank, order ed him to pay a forfeiture of his salary , and placed him on restriction with extra punishment duties. At this point, the Command was required to process the Applicant for administrative separation pursuant to paragraph 6210.5 of the MARCORSEPMAN , Misconduct - Drug Abuse . However, the C ommand made a deliberate and conscious decision to forego the service requirement to process for separation . In stead, t he Applicant was counseled formally with a service record book retention counseling warning a nd deployed with his unit in support of Operation IRAQI FREEDOM . While deployed , the Applicant actively participated in Operation Defeat Al-Qaida in the North , conducting continuous combat operations in a harsh and very austere environment for over 80 consecutive days. Not until f our months a fter returning from the combat deployment was the Applicant processed for administrative separation . The n ew unit Commander sight ed the substance abuse from 13-months prior as the factual basis for separation .

T he C ommand’s deliberate effort at retaining the Applicant while maintain ing their s pecial trust and confidence in his abilities , coupled with his honorable service in combat , are contradictory to the Under Other Than Honorable characterization of service he received at discharge. Though the Applicant’s overall service record is marred with minor misconduct, t h e Applicant’s combat service , with risk to his life, for his country , was honorable . By a vote of 5-0 , the board found the awarded characterization of service to be i nequitable ; t he Board determined an upgrade in the Applicant’s characterization of service to General ( Under Honorable Conditions ) was warranted. Additionally, by a vote of 5-0 , the Board determined the narrative reason for separation was i mproper; as such, the Board determined the narrative reason for separation shall be change d to Secretarial Authority .

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 improper and inequitable. Therefore, the awarded characterization of service shall and the narrative reason for separation shall change to SECRETARIAL AUTHORITY .
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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