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USMC | DRB | 2010_Marine | MD1000048
Original file (MD1000048.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090922
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)       20031022 - 20040613     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20040614     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080910      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 27 D a y ( s )
Education Level:        AFQT: 55
MOS: 0311/8152
Proficiency/Conduct M arks (# of occasions): ( 15 ) / ( 15 )        Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle Pistol (x2)

Periods of CONF : (24 days) 20080815-20080907

Periods of Time Lost ( Correction to DD-214) : 20080722-20080803 (13 days ); 20080815-20080907 ( 24 days )

NJP:

- 20060119 :      Article (Failure to obey lawful order or regulation - wrongfully having a female visitor stay overnight in room)
         Awarded: Suspended:

- 2006031 6 :      Article (UA), 2 specifications
          Specification 1: Failure to go to appointed place of duty on 20060308, to wit: restriction check in
         Specification 2: Failure to go to appointed place of duty on 20060314, to wit: restriction check in
         Article (Break restriction)
         Awarded: Suspended:

- 20060908 :      Article (UA 1800, 20060808 to 0630, 20060809 )
         Awarded: Suspended:

- 20070310 :      Article (Disorderly conduct , Hazing )
         Awarded: Suspended:

- 20080422 :      Article (Drugs - C ocaine 21 ,248 N g/ m l)
         Awarded: Suspended:

- 20080807 :      Article (UA 20080722-20080803, 13 days)
         Article (Failure to obey order)
         Awarded : Susp ended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20051117 :       For failure to go to appointed place of duty, to wit: 0600 formation.

- 20060120 :       For barracks order violation, by having an authorized female in my room.

- 20060316 :       For UA and breaking restriction.

- 20060928 :       For UA, SNM was absent from the command after receiving several extensions to his authorized leave. Several attempts were made to contact SNM but his contact information had been disconnected. Your ability to make your whereabouts known to the command during this time was poor and has resulted in these procedures. This is extremely poor judgment, a lack of maturity on your part and will not be tolerated. This is also disregard to authority and order.

- 20070312 :       For disorderly conduct. You took part in an incident which could be considered by many to be hazing in that you allowed other Marines access to your room so that they could place a box filled with human feces in your room while your roommate was sleeping. This kind of behavior undermines the Marine Corps dedication to excellence and strict discipline structure. It also is not in keeping with our Corps values of Honor, Courage and Commitment.

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 ”
        “ (13) 20080722-20080803 ; (24) 20080815-20080907”

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.       Nondecisional issues : Applicant requests an upgrade in the characterization of his service at discharge from Under Other Than Honorable Conditions to General, Under Honorable Conditions in order to be eligible for medical treatment for an arm injury .

2.       Decisional issues : The Applicant did not identify any.

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. The Applicant did not identify any decisional issues to the Board. However, the Board complete d a thorough review of the circumstances that led to the discharge , and the discharge process , to ensure his discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included 6105 retention- counseling warnings and separate for o f the following Articles of the Uniform Code of Military Justice (UCMJ):

•         Article ( Absence without leave , 4 specifications - 13 day period of unauthorized absence and numerous failure to go/to be at appointed places of duty ),
•         Article ( Failure to obey a lawful order or regulation , 2 specifications ),
•         Article ( Wrongful use, possession, etc . of a controlled substance, 1 specification: cocaine 21,248 ng/ml as reported by Naval Drug lab msg ) , and
•         Article ( General Article - Disorderly conduct, 1 specification - Hazing) .

The Applicant entered the service with a pre-service drug waiver for the us e of marijuana prior to entering the Marine Corps ; he acknowledged , in writing, his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 8 October 2003 . Based on the Article 112a violation of the UCMJ , processing for administ rative separation was mandatory. The NDRB reviewed the Applicant’s administrative discharge package ; w hen notified of a dministrative separation processing using the procedure, the Applicant rights to consult with a qualified coun sel, to submit a written statement , and to request an administrative board hearing.

The Applicant did not provide any additional documentation for the Board ’ s consideration.

: (Nondecisional) . The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. There is no requirement , or law , that grants re - characterization 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. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge only .

: (Decisional) (Equity/Propriety) . The Applicant did not identify any issues for the NDRB’s consideration. However, the Board conducted a detailed review of the applicant’s record of service. The Applicant’s service was marred by 5 retention warnings and 6 nonjudicial punishments for violations of the Uniform Code of Military Justice . Violation of Article 112a (drugs-cocaine) warrants mandatory processing for separation. Violation of Article 112 ( a ) is a serious offense, punishable by punitive discharge and confinement if adjudicated by a special or general court-martial. The command did not pursue a punitive discharge , but instead , opted for the more lenient administrative discharge.

The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge , if such a change is warranted. There is no evidence of impropriety, inequity, or procedural irregularities in the Applicant's discharge. The Applicant's misconduct wa s clearly documented. He acknowledged and waived his rights to administrative review. The Applicant was afforded the appropriate due process during the processing of his case . 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 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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