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USMC | DRB | 2010_Marine | MD1000096
Original file (MD1000096.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20091015
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)       20030816 - 20031107     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20031108     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20060419      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 12 D a y ( s )
Education Level:        AFQT: 67
MOS: 5811
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

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

Period of UA :

NJP: 1
- Date NFIR:     Article NFIR [extracted from Administrative Remarks (1070) record 20050606 and20050610 entries]

SCM:

- 20050826 :       Art icle (Wrongfully use cocaine)
         Sentence : CONF 14 days (20050906-20050917, 12 days)

SPCM:

CC:

Retention Warning Counseling :

- 20051129 :       For failing a urinalysis screening in reference to Naval Message R181640Z APR 05.

- 20051206 :       For violation of A rticle 92, failure to obey general orders: paraphernalia possession on 20051022.

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 ”
        
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. Isolated incident in 28 months of service with no other adverse action.
2. The only Marine in history to receive a court-martial and a Good Conduct Medal in the same year.
 3 . Improper paperwork submitted against him and proper procedures were not followed.
4. Other Marines in his unit tested positive for drugs and remain in the Marine Corps.
5. Was depressed and verbally diagnosed with post-traumatic stress disorder (PTSD).
6. Has a 4.0 grade point average and plans to apply to medical school.

Decision

 Date: 20 10 1110            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’s record of service included two 6105 counseling warnings , one nonjudicial punishment for violation o f the Uniform Code of Military Justice (UCMJ): specific Article s not found in record (information extracted from Administrative Remarks (1070) record 20050606 and20050610 entries) , and one summary court-martial for violation of the UCMJ: Article 112a (Wrongful use of a controlled substance, cocaine, amount not found in record).
The Applicant did not require a pre-service drug waiver prior to entering the Marine Corps and acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 15 August 2003 . Based on the Article 112a violation , processing for administrative separation is mandatory. When notified of a dministrative separation processing using the administrative board procedure, the Applicant elected his right to consult with a qualified counsel, but waived his rights to submit a written statement and request an administrative board .
Issues 1-2 : (Decisional) ( ) . The Applicant contends his misconduct was an i solated incident in 28 months of service with no other adverse action, and he is the only Marine in history to receive a court-martial and a Good Conduct Medal in the same year. Despite a service member’s prior record of service , certain serious offenses, even though isolated, warrant separation from the Marine Corps to maintain proper order and discipline. Violation of Article 112a 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. The command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. As to the Good Conduct Medal, the Applicant did not earn one. This medal is earned after three years of misconduct-free service. The Applicant’s confusion may have arisen from Block 18 on his DD Form 214, which states, “Good Conduct Medal period commences 20050918.” This note is on the form to start the three-year counter if the Applicant ever serves again in the military. The NDRB found the characterization of the Applicant's discharge was equitable and his separation from the Marine Corps consistent with others in similar circumstances.
Issue 3 : (Decisional) ( ) . The Applicant contends improper paperwork was submitted against him and proper procedures were not followed. The Applicant did not specifically identify or provide documentation regarding the improper paperwork and procedures. After a thorough review of the records, the NDRB discerned no impropriety in the discharge action.

Issue 4 : (Decisional) ( ) . The Applicant contends other Marines in his unit tested positive for drugs and remain in the Marine Corps. The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the U.S. Marine Corps. A preponderance of the evidence reviewed supports the conclusion the Applicant committed a serious offense, that separation from the Naval service was appropriate, and that an Under Other Than Honorable discharge was warranted.

Issue 5: (Decisional) ( ) . The Applicant contends he was depressed and verbally diagnosed with PTSD. The NDRB found no evidence in the Applicant’s medical record that he was being treated for depression or was ever diagnosed with PTSD. His Medical Record Standard Form 513 dated 2 February 2006 stated the Applicant was “coping with grief and loss issues over the recent death of his mother,” but there was no diagnosis for Axis II (developmental and personality disorders) or Axis III (physical conditions). The NDRB determined the Applicant’s depression and verbal diagnosis of PTSD were not mitigating factors in his misconduct.

Issue 6: (Decisional) ( ) . The Applicant contends he has a 4.0 grade point average and plans to apply to medical school. The NDRB considers 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.
The Applicant provided a letter of reference and documentation regarding his employment, education, and criminal record.
 The NDRB determined the Applicant did not provide sufficient post-service documentary evidence to form a basis of relief.
The Applicant c ould have provided documentation that could include but not limited to: letters of personal reference and verifiable employment record; evidence of a drug-free life style; evidence of financial stability (mortgage or home rental history, credit score, credit card payments); documentation of community or church service; and if married, a marriage certificate. The Applicant should be aware submission of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the NDRB on a case-by-case basis.

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, Automatic Upgrades, 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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