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USMC | DRB | 2010_Marine | MD1000098

Original file (MD1000098.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)       19990909 - 20000731     Active:

Period of Service Under Review:
Date of Current Enlistment: 20000801     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20041029      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 29 D a y ( s )
Education Level:        AFQT: 63
MOS: 0481
Proficiency/Conduct M arks (# of occasions): /          Fitness R eports:

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

Periods of CONF :

NJP:              SCM:     CC:

SPCM: The Applicant requested and received a separation in Lieu of Trial by Special Court Martial; specifications of the specific charges were not found in the record.

Retention Warning Counseling :

- 20040715 :       For unauthorized absence - failure to be at appointed place of duty at prescribed time .

- 20040714 :       For illegal drug use. Naval Message dated 271544Z Feb 2004 - verified that you did indeed violate the Marine Corps policy on using drugs by testing POSITIVE for COCAINE .

Administrative Corrections to the Applicant’s DD 214

The NDRB did note an administrative error on the original DD Form 214.

Block 12.h. - Effective Date of Pay Grade, should read: “ 20041029 ”

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: None

         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. 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.       Nondecisional issues : (1) Applicant contends that his rank is reflected incorrectly on his For m DD-214 and (2) that his awards, decorations , and medals are incorrectly stated on his Form DD-214.

2.       Decisional issues : (Propriety /Equity ) The Applicant contends that the charges levied against him - which led to his separation - were false and trumped up after a judge dismissed charges against him for drug use in a trial by Special Court-Martial . (2) The Applicant contends that he was extended beyond his contractual end of obligated service improperly. (3) That any misconduct by the Applicant was mitigated due to extensive family problems upon return from deployment , which was not considered in his treatment or characterization of service.

Decision

Date: 20 10 1018          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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant submitted three decisional issue s to the Board . The Applicant provided no additional documentation for the Board’s consideration and did not provide any documentation to rebut any presumption of regularity in governmental affairs.

The Board com pleted 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 for unauthorized absence and for violation of the Marine Corps Policy concerning illegal drugs abuse after testing positive for the illegal use of cocaine. T he Applicant entered military service without waiver and he acknowledged - in writing - his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 08 September 1999.

The Applicant’s military record does not contain a complete copy of the separation proceedings . T he Board presume d regularity in the conduct of governmental affairs based on the Separation Authority ’s letter , approving the Applicant’s written request for separation in lieu of trial by court - martial and direct ing his separation Under Other Than Honorable Conditions . The approval of a request for separation in lieu of t rial by c ourt -m artial requires t he Applicant request his separation for the good of the service to escape trial by Special Court-Martial. Th at request for separation contains certain basic requirements , which must be satisfied , before receiving approval by the Separation Authority. In the request, the Applicant must clearly affirm that his rights were explained thoroughly to him , to include his right to consult with qualified counsel. Furthermore, the Applicant must admit his guilt to the charges preferred against him and m ust further certif y that he has a complete understanding of the negative consequences of his actions, the narrative reason for his separation, and finally, that his characterization of service upon separation could be Under Other Than Honorable Conditions.

: (Nondecisional) – The Applicant contends that his rank is reflected incorrectly on his For m DD-214 and that his awards, decorations, and medals are incorrectly stated on his Form DD-214. In accordance with paragraph 1004.2.c.3 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN), when an enlisted Marine serving in pay grade E-4 or above is administratively separated with an other than honorable characterization of service, the Marine shall be administratively reduced to pay grade E-3, with such reduction to become effective upon separation. T he A pplicant was administratively separated with an U nder O ther T han H onorable characterization of service and was appropriately reduced in pay grade from E-4 to E-3 upon separation . T he Applicant’s Form DD-214 correctly reflects the Applicant’s rank and grade at separation.

The NDRB has no jurisdiction over the correctness of awards cited on the Form DD-214 ; the Board for Correction of Naval Records ( http://www.donhq.navy.mil/bcnr/bcnr.htm ) h as the authority to make corrections , if petitioned with evidence , which refutes the error or provides credible evidence warrant ing the awarding of additional awards or commendations.

: (Decisional) ( ) . The Applicant contends that the charges brought against him - which led to his separation - were false and manufactured after a judge in a Special Court-Martial dismissed the charge against him for drug use due to a procedural error . (2) The Applicant contends that he was retained improperly beyond his contractual end of obligated service date . (3) That any misconduct by the Applicant was mitigated due to extensive family problems upon return from deployment, which w ere not considered in his treatment or characterization of service .

The Board applied the presumption of regularity of governmental affairs in this specific case due to the absence of a complete discharge package in the official service records . The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue s . In the absence of a complete discharge package, the Board presumed regularity in that the Applicant requested that he be separated administratively to escape trial by court-martial . This is exhibited in the narrative reason for separation on his Form DD-214 – discharged in lieu of tri a l by court - martial .

The applicant violated the UCMJ for unknown charges and specifications. Upon consideration of the facts and circumstances surrounding the offense(s), and upon further consideration of the need for military discipline in the command, the Commanding Officer determined that the charges were of such a serious nature that they warranted a trial by Special Court - Martial. To avoid trial by court-martial, the Applicant requested a discharge for the good of the service. In that request, the Applicant was required to have had the elements of the offense(s) for which he was charged fully explained to him by counsel; the Applicant was required to admit his guilt to the offense(s) charged ; and the Applicant must specify a complete understanding of the negative consequences of his actions. The command accepted the Applicant’s acknowledgement of misconduct and his acceptance of responsibility for that misconduct and recommended the Separation Authority approve his request. In doing this, the command opted for the more lenient administrative separation in lieu of the more punitive trial by court-martial.

The evidence of record unique to this case does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. The Applicant provided no documented information he informed his chain of command of family problems and did not receive the assistance, leave, or help he asked for. Additionally, the Applicant did not mention, nor provided documented proof, if he attempted to use any one of the numerous family support programs sponsored by or for military service members. These programs and services, such as Family Advocacy, Navy – Marine Corps Relief Society, Red Cross, the Chaplain, or even Navy medical health personnel if needed, all provide services to members of the military, regardless of grade, in times of need.

In this specific case, the Applicant was retained on active duty beyond the end of his obligated active duty service date . In accordance with paragraph 1008.1 .b of the MARCORSEPMAN , “ Those personnel to whom jurisdiction has attached by commencement of action with a view to trial, as by apprehension, arrest, confinement, or filing of charges, before release from active duty, may be retained on active duty. Once jurisdiction has been so attached, it continues for purposes of trial, sentence, and punishment. ” Jurisdiction attached to the Applicant when the command referred charges for a trial by S pecial C ourt -M artial. The Applicant was properly retained until sentence and punishment actions were completed. Based on review of the available documentation in the Applicant’s service record, the NDRB determined that there was no impropriety in the discharge action to extend the A pplicant beyond his service limitation; accordingly, relief is not warranted.

When a service has been honest and faithful, it is appropriate to characterize that service under Honorable c onditions. 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. Given the serious nature of the charges that warranted a trial by court-martial , and the confirmed violation of the Marine Corps Policy on illegal drugs (p ositive urinalysis for c ocaine) , the Board determined the Applicant’s conduct, which forms the primary basis for determining the character of his service, constituted a significant departure from that conduct expected of a service member. The Board determined that the awarded characterization of service 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 the discharge was both proper and equitable as issued. 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 Reviewsand 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 | MD1000098

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