Upgrade.Vet

USMC | DRB | 2010_Marine | MD1000003

Original file (MD1000003.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20090924

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)       20060420 - 20060806     Active:

Period of Service Under Review:
Date of Current Enlistment: 20060807     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080402      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 26 D a y ( s )
Education Level:        AFQT: 69
MOS:
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle , ,

Periods of UA: 200700507 – 20070607 (32 days), 20080102 – 20080108 (7 days)
Periods of Confinement: 20070725 – 20070817 (24 days)

NJP:

- 20070623 :      Article (UA 20070507-20070607, 32 days)
         Awarded: Suspended:

- 20080111 :      Article (UA 20080102-200 8 0108, 7 days)
         Awarded: Suspended:

SCM:

- 20070725 :       Art icle (Drugs - marijuana , 26 ng/ml )
         Sentence : (20070725-20070817, 24 days)

SPCM: CC:

Retention Warning Counseling :

- 20070623 :       For failure to follow instruction s given to you by your platoon and company leadership by absent ing yourself from your unit from 20070507 to 20070607. This indicates a lack of judgment, common sense, and specifically a failure to follow instruction given to you by your chain of command not to go UA.

- 20070928 :       For UA. You failed to be present for 1100, 1300, and 1530 formation on 20070927.

- 20071003 :       For UA. You failed to be present for 0600 morning formation on 20071003.

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 ”
         “ MISCONDUCT ”

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:          Rehabilitation/Treatment:                  Criminal Records:
         Personal Documentation :          Community Service:                References:
         Department of VA letter:                  Oth er Documentation:
                  Additional Statements :
         From Applicant:          From /To Representation:          From /To Congress m ember :

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.       The Applicant seeks an upgrade in his characterization of service in order to re-enlist.
2.       The Applicant contends that his discharge was based on a single incident of misconduct in what was otherwise honorable service and warrants a more equitable characterization of service.

Decision

Date : 20 10 1022          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. 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 entered active duty with a pre-service waiver for drug use - marijuana - and two moral waivers for unknown criminal misdemeanor involvement . He acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs, in writing, on 18 April 2006.

The Applicant’s record of service included 6105 retention- counseling warnings and for o f the Uniform Code of Military Justice (UCMJ) - Article 86 ( Absence without leave , 2 separate specifications of absenting himself from his unit without authority for 32 days and 7 days ) . Moreover, the Applicant ’ s record was further marred by a summary court martial (SCM) for of the UCMJ: Article ( Wrongful use, possession, etc of a controlled substance; specifically- Marijuana) . The Applicant’s illegal use of marijuana was confirmed by a gas chromatography/mass spectrometry (GC/MS) test with a positive confirmation level of 26 ng/ml for THC. The cut-off level for positive confirmation of marijuana use is 15 ng/ml. A violation of Article 112 ( a ) requires mandatory processing for administ rative separation. Upon review of the Applicant’s administrative discharge process, it was verified that the Applicant was notified in writing of the proposed a dministrative separation process using the procedure ; the Applicant elected to waive right to consult with a qualified coun sel, to submit a written statement , and to request an administrative board hearing. The Applicant was notified of the proposal for separation by reason of: drug abuse ; commission of a serious offense ; and a pattern of misconduct. The primary basis of separation was drug abuse in accordance with paragraph 6210.5 of the Marine Corps Separation and Retirement Manual.

The Applicant provided one letter of character reference that also included a history of his upbringing as a youth.

: (Nondecisional) The Applicant seeks an upgrade in his characterization of service in order to re-enlist. The NDRB has no jurisdiction or authority over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces and is not authorized to change a reenlistment code. Only the Board for Correction of Naval Records can make changes to reenlistment codes. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. Reenlistment policy of the Marine Corps is promulgated by the Commandant, United States Marine Corps, Code MMEA, 3280 Russell Road, Quantico, VA 22134. A request for a waiver may be submitted during the processing of a formal application for reenlistment through a recruiter; neither a less than fully honorable discharge, nor an unfavorable "RE" code is, in itself, a bar to reenlistment.

: (Decisional) ( ) . The Applicant contends that his discharge was based on a single incident of misconduct in what was otherwise honorable service; as such, the Applicant contends that he warrants a more equitable characterization of service. 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. The Applicant contends his discharge should be upgraded based on his record of service. Despite a Marine’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. Violation of Article 112a is one such offense requiring mandatory processing for administrative separation , regardless of grade or time in service. This usually results in an unfavorable characterization of service at 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. Additionally, the Applicant’s v iolation of Article 86 ( in excess of 30-days ) is a serious offense , punishable by a 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 for either of the Applicant’s v iolations of the UCMJ, but instead opted for the more lenient administrative discharg e .

When the service of a member of the U.S. Marine Corps has been honest and faithful, it is appropriate to characterize that service as H onorable . Likewise, a discharge Under Other Than Honorable Conditions is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the naval service. The Board determined the Applicant’s conduct, which forms the primary basis for determining the character of his service, reflected a significant departure from the conduct expected of a service member and that the NJPs and Summary Court Martial substantiated the misconduct. T he awarded characterization was appropriate. Relief denied.

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, Re-enlistment , 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 | 2010_Marine | MD1000003

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