Upgrade.Vet

USMC | DRB | 2010_Marine | MD1000100

Original file (MD1000100.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: SECRETARIAL AUTHORITY

Summary of Service

Prior Service:
Inactive:                           Active:

Period of Service Under Review:
Date of Current Enlistment: 20050316     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 200810 24      H ighest Rank:
Length of Service:
         Inactive:        Y ea r ( s ) M on th ( s ) 12 D a y ( s )
         Active: Y ea r ( s ) M on th ( s ) 26 D a y ( s )
Education Level:        AFQT: 71
MOS: 2141
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA : 20070816-20070819

NJP:

SCM:

SPCM:

CC:

Retention Warning Counseling :

- 20070909 :       For illegal drug use.

- 20070909 :       UA for drill, 20070816-20070819.

- 20080201 :       For your unauthorized absence. On 20070816 you left appointed place of duty without authorization. Failure to be at appointed place of duty placed you in an unauthorized absence status. You did not report back to appointed place of duty for the remainder of the drill period. As a result you were not credited for the required drill periods for the month of August. Because of your unauthorized absence, you are the subject of a Competency Review Board, the results of which will be explained to you upon conclusion of the board.

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. Wants his GKK1 separation code and reentry RE-4B code changed to reenlist in the Marine Corps.
2 . Administrative board findings and recommendations are contrary to and not supported by evidence submitted.
3 . Separation authority staff did not conduct a thorough legal review of the [administrative board] proceedings.
4 . Administrative board presiding officer and recorder did not comply with portions of the Marine Corps Separation and Retirement Manual (MARCORPSEPMAN) regarding administrative separation board procedures.
5 . Administrative board members engaged in ex-parte communications during board deliberations.
6 . Noncompliance with MARCORPSEPMAN administrative separation board procedures resulted in improper discharge characterization.
7 . Administrative Discharge Report containing material errors of fact and unsubstantiated statements resulted in an abuse of power and authority.
8 . Separation Authority given a Summarized Record of Board Hearing and Administrative Discharge Report containing material factual errors.
9 . Retaliation and reprisal against the Applicant by his chain of command before, during , and after the administrative proceedings.
10 . Repeatedly denied access to copies of documents forwarded to the Separation Authority.

Decision

Date: 20 10 0921 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 three 6105 counseling warnings and no misconduct that resulted in nonjudicial punishment or court-martial. However, the Applicant had vio lati on s of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, 20070816-20070819) and Article 112a ( Wrongful use, possession, etc. of a controlled substance, 1 specification: marijuana, 75 ng/ml) . (The DoD cutoff is 15 ng/ml.) The Applicant required a pre-service drug waiver for using marijuana once prior to entering the Marine Corps acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 16 March 2005 . Based on the Article 112a violation , processing for administ rative separation is mandatory. When notified of a dministrative separation processing using the procedure, the Applicant right to submit a written statement and elected to consult with a qualified coun sel and request an administrative board . The administrative board voted 3 -0 that there was a preponderance of evidence for separation from the Marine Corps with an Under Other Than Honorable Conditions characterization, that the separation not be suspended, and that the Applicant not be retained in the Individual Ready Reserve.

Issue 1: (Nondecisional) The Applicant wants his separation code, GKK1, and his “reenlistment” [reentry] code, RE-4B, changed to reenlist in the Marine Corps. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, and is not authorized to change a reentry 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. 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.

Issue 2 : (Decisional) ( ) . The Applicant contends the “a dministrative board findings and recommendations are contrary to and not supported by the substantial weight of the evidence submitted by LCpl [Applicant] during the hearing and exculpatory evidence furnished in the Appeal/Letter of Deficiency dated 20 Jul 08. The Government did not comply with the burden of proof and standard of proof as defined in Sections 6316.10 and 6316.11; the board improperly concluded LCpl [Applicant]’s discharge characterization as other than honorable on the basis of impairment and fitness for duty under Section 1004 and improperly concluded his conduct was “service related , ” without submitting supporting evidence, Government witness testimony , or expert medical opinion to base the board’s findings and recommendations. ” The Applicant provided exculpatory evidence from a medical review officer and a forensic toxicologist to show that the low level of marijuana in his system “caused absolutely no impairment of this individual and does not constitute a danger to the individual and the safety of others in the unit.” After reviewing the testimony, t he NDRB noted that the Recorder
for the administrative board did not submit evidence rebutting the Applicant’s expert witnesses. However, the NDRB found the administrative board justifiably relied on the results of the urinalysis as evidence of impairment. The NDRB finds it disturbing that the Applicant and his counsel provided expert testimony to demonstrate the App licant’s level of marijuana in his system did not impair his fitness for duty, implying low levels of marijuana is acceptable in the Marine Corps. The NDRB stands behind the Marine Corps policy concerning the illegal use of drugs and that each instance of illegal drug use by a Marine makes that Marine unfit for duty and a risk to the safety of fellow Marines. A fter a careful review of the Applicant's official service record, and taking into consideration his testimony and the testimony of his witnesses during the administrative board, and the facts and circumstances unique to this case, the NDRB determined the awarded characterization was warranted.

Issue 3 : (Decisional) ( ) . The Applicant contends , “As stipulated in Sections 6306, 6308, 6308.1(a), 6308.1(b), 6308.1(c)(2) , and 6316.1 , the Separation A uthority staff did not conduct a thorough legal review of the [ad ministrative board] proceedings , i.e., legal review did not comment on the merits of numerous specific legal issues raised by Defense Counsel in the 20 Jul 08 Appeal/Letter of Deficiency , did not set forth facts and reasoning leading to a determination, did not recommend corrective action, and did not furnish a recommendation to the Separation Authority for subsequent consideration prior to the Separation Authority’s final action and decision; the Separation Authority staff withheld exculpatory evidence from the Separation Authority furnished by LCpl [Applicant] denying him due process to a fair opportunity to defend himself.” Although the Judge Advocate, Marine Forces Reserve, letter dated 17 September 2008, did not specifically address the Applicant’s Detailed Defense Counsel’s specific legal issues, the NDRB , based on the presumption of regularity, found the Staff Judge Advocate, based on his letter, did conduct a thorough review of the administrative board proceedings and found them “sufficient in law and fact” and determined that the Applicant was not denied due process.

Issue 4: (Decisional) ( ) . The Applicant contends , “The Presiding Officer and Government Recorder did not comply with Section 6315.2(b) and did not note in the record the multiple objections raised by the Defense Counsel for resolution by the Separation Authority. The Separation Authority’s staff (Convening Authority and SJA) did not comply with Sections 6308.1, 6308.1(a), and 6316.1 and failed to ensure the package was physically and administratively complete (i.e., all enclosures are attached and all specific requirements of this chapter met).” The NDRB determined the multiple objections raised by the Defense Counsel were not noted in the administrative board’s letter dated 29 June 2008 . Per the MARCORSEPMAN, “such motions or objections should be heard and merely noted in the record for resolution by the separation authority.” The NDRB determined it is not a n absolute requirement to include motions or objections in the record for resolution by the S eparation A uthority. Since the defense counsel submitted a letter dated 20 July 2008 (Appeal/Letter of Deficiency) directly to the S eparation A uthority, the NDRB determined the S eparation A uthority was aware of the defense counsel’s objections and took them into consideration in his review.

Issue 5 : (Decisional) ( ) . The Applicant contends , “In violations of Sections 6319.1 and 6315.3, board members engaged in improper ex-parte communications during board deliberations by communicating with the Recorder and other command members (Staff Sergeant [omitted], First Sergeant [omitted] and Gunnery Sergeant [omitted]) as acknowledged by both the Senior Member of the board on the record and by the Government Recorder in his written statement dated 30 Jul 2008 (Exhibit 28).” Based on the evidence of record, the NDRB determined the board members did engage in ex-parte communications. In his letter dated 30 July 2008, the Recorder stated the ex-parte communication “was solely based on providing the members of the board, at their request, additional information sourced directly from the Marine Corps Separation Manual (MARCORSEPMAN) and the Marine Corps Reserve Administration Management Manual (MCRAMM). ” The NDRB determined the ex-parte commu nications did not deny the Applicant a fair hearing by the administrative board.

Issue 6: (Decisional) ( ) . The Applicant contends , “Before initiating separation processing the Government did not comply with Section 6302.3(c) and did not review Section 1004.4(d) limitations to the characterization of discharge as it relates to conduct in the civilian community by a reservist not in a duty status. Non - compliance with Sections 6302.3(c) and 1004.4(d) resulted in an improper discharge characterization not based upon any evidence LCpl [Applicant] was impaired, intoxicated , and unfit to perform military duties. Failure to comply with Section 6302.3(c) and 1004.4 denied LCpl [Applicant] due process to a fair opportunity to defend himself.” The Applicant failed to provide documentation that the administrative board did not review the subject sections “before initiating separatio n processing.” Based on section 6302.3, the administrative board should have, but is not required to , review paragraph 1004.4 (d) before initiating separation processing . The NDRB d etermined, based on the presumption of regularity, the administrative board did review these sections before maki ng their final recommendation and did not deny the Applicant due process to a fair opportunity to defend himself.

Issue 7 : (Decisional) ( ) . The Applicant contends , “Abuse of power and authority by providing a Summarized Record of Board Hearing and Administrative Discharge Board Report: Findings and Recommendations containing material errors of fact and unsubstantiated statements not based on evidence presented during the administrative proceedings. As documented in CDR [Defense Counsel]’s Appeal/Letter of Deficiency dated 20 Jul y 20 08 : …” After a careful review of the Summarized Record of Board Hearing (enclosure (1) of the administrative board’s letter dated 29 June 2008), the NDRB determined there were minor discrepancies in the report , but they do not represent an abuse of power or authority by the administrat ive discharge board, nor did they unfairly prejudice the Applicant.

Issue 8 : (Decisional) ( ) . The Applicant contends , “ Separation Authority was furnished a Summarized Record of Board Hearing and Administrative Discharge Board Report containing material factual errors. Board members and the Government Recorder signed and authenticated official military documents containing the name and identifying information for another Marine not LCpl [Applicant] and contain ing information regarding an administrative proceeding held on another date , which have become a part of LCpl [Applicant]’s administrative separation package and permanent service record and were the source documents relied upon by the Separation Authority for his final action.” The NDRB found the Applicant’s name was misspelled on the Summarized Record of Board Hearing but his social security number was correct , and the subject header was correct on the first page but not correct on pages 2 and 3 of the administrative board’s finding and recommendations letter dated 29 June 2008 ( the last two pages identified another Marine and not the Applicant ) . In his letter dated 30 July 2008, the Recorder stated this error was a typographical oversight and he failed to update the header with the Applicant’s correct information. The NDRB determined the errors were typographical errors that should have been identified by one of the administrative board members, but it did not influence their findings or recommendations.

Issues 9: (Decisional) ( ) . The Applicant contends , “ Abuse of power and authority by chain of command; retaliation and reprisal against LCpl [Applicant] by chain of command before, during, and after the administrative proceedings . ” After a review of evidence provided by the Applicant, the NDRB determined the Applicant’s chain of command did not arbitrarily or capriciously abuse their power and authority or retaliate against the Applicant during the administrative proceedings.

Issue 10: (Decisional) ( ) . The Applicant contends , “LCpl [Applicant] was repeatedly denied access to copies of documents forwarded to the Separation Authority supporting the basis of his administrative separation in violation of Section 6303.6(a)(5).” Per his letter dated 14 May 2008, t he Applicant requested “the opportunity to review my official military personnel file and photocopy documents from my file ” to review administrative separation documentation but it was denied . In an email to CDR [omitted] dated 23 July 2008, the Applicant stated he had “not been successful gaining access to my MKEAS package” and did not know what was placed in his file. [NDRB determined MKEAS refers to t he Marine Corps Enlisted Administrative Separations System ( MCEAS ).] On 20 August 2008, the Applicant request ed “a complete copy of all documents to include electronic and hard copy as well as any endorsements attached pertaining” to his administrative board proceedings. On 2 February 2009, the Applicant (now a civilian) submitted a request to the Staff Judge Advocate, Marine Forces Reserve/Naval Support Activity, New Orleans, LA, under the Freedom of Information Act/Privacy Act for his administrative separation package. The NDRB concurs the Applicant should have been able to obtain his administrative separation package after the board was held in a timely manner. However, the NDRB noted in the Defense Counsel’s Appeal/Letter of Deficiency letter dated 20 July 2008, he enclosed the Administrative Discharge Board Findings and Recommendations ICO LCPL [Applicant], Government Exhibits ICO LCPL [Applicant] [22 exhibits], Respondent Exhibits ICO LCPL [Applicant], Government Summarized Record of Board Hearing ICO LCPL [Applicant], and the Defense Verbatim Transcript of Administrative Discharge Board Hearing ICO LCPL [Applicant]. The NDRB determined the Defense Counsel had copies of the documents forwarded to the Separation Authority and opined it was reasonable to infer that he gave a copy of them to the Applicant. The NDRB determined this issue is without merit because the Applicant’s request for copies after the conduct of the administrative board is administrative in nature and has no bearing in determining the propriety or equity of the discharge.

Summary: I f a Marine is being separated as a result of adverse conduct, an H onorable characterization is appropriate only if the Marine’s service is otherwise so meritorious that any other characterization would be clearly inappropriate. The Applicant required a drug waiver to enlist in the Marine Corps . He also indicated on his security clearance application dated 15 March 2005 that he used marijuana once on 1 January 2005. He signed the Marine Corps Policy Concerning Illegal Use of Drugs on 16 March 2005, which states, “each instance of illegal drug use by a Marine makes that Marine unfit for duty and a risk to the safety of fellow Marines.” After completion of final examinations, t he Applicant attended a party (sometime between 1-4 May 2007) and drank to a point where he passe d out and lost consciousness. The Applicant testified he does not know how marijuana got into his system and did not knowingly or intentionally use marijuana. The NDRB does not view a lcohol consumption as an acceptable excuse for misconduct or poor judgment. In August 2007, he went absent without leave to avoid a urinalysis because two weeks prior to the drill weekend, he “unknowingly” drank some tea and ate a brownie that were laced with marijuana, which were given to him by h is roommate whom he knew was a drug abuser. The Applicant’s statements alone, without sufficient documentary evidence, are not enough to form a basis of relief and upgrade the characterization to Honorable or change the narrative reason for separation. 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 , and the totality of the Applicant’s service, supports the conclusion that the Applicant committed a serious offense, that separation from the Naval service was appropriate, and that an Under Other Than Honorable Conditions discharge was warranted.

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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