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USMC | DRB | 2010_Marine | MD1000105

Original file (MD1000105.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)       20040221 - 20041031     Active:

Period of Service Under Review:
Date of Current Enlistment: 20041101     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080404      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 04 D a y ( s )
Education Level:        AFQT: 57
MOS: 0231
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle Pistol

Periods of UA : None
Periods of CONFINEMENT: 20080215-20080223 (9 days); 20070329-20070612 (76 days)

NJP:

- 20060201 :      Article (Violated a lawful general regulation - wrongfully inhaling “Dustoff ” in Al Qaim, Iraq )
         Awarded: Suspended:

SCM:

- 20080213 :       Art icle (Drugs - M arijuana - 125 ng/ml )
         Sentence : for 14 days (20080215-20080223, 9 days)

SPCM:

- 20070608 :       Article 108 (Destruction of military property)
         Article 128 (Assault)
         A rt icle (Communicating a threat)
         Sentence : for 8 months (20070329-20070612, 76 days)
         CA Action: The sentence is approved and will be executed, but the execution of that part of the sentence extending to all confinement in excess of 3 months is suspended.

CC:

Retention Warning Counseling :

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

Nondecisional issues: The Applicant seeks relief in order to apply for Veteran Affairs compensation benefits and medical care.

Decision

Date: 20 10 1118 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 did not identif y any decisional issue s for the NDRB’s consideration ; however, t he NDRB completed 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 no 6105 retention-counseling warnings and one non-judicial punishment for violation of the Uniform Code of Military Justice (UCMJ): Article 92 ( Violation of a lawful order or regulation; specifically, inhaling “Dust-off” while in Al-Qaim Iraq in order to achieve intoxicating effects) . Additionally, the Applicant was subject to a Summary Court - Martial for violation of Article 112a (Wrongful use, possession, etc of a controlled substance – Marijuana, 125 ng/ml) and a Special Court - Martial for violation of Articles 108 (Des truction of m ilitary property), 128 (Assault) , and 134 (Communicating a threat).

The Applicant ’s enlistment record reflects his entry into military service with a pre-service w aiver for drug use - marijuana, without police involvement . Furthermore, the Applicant a cknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs , in writing, on 20 Feb 2004 . Based on the Article 112a violation, processing for administ rative separation wa s mandatory. The NDRB reviewed the Applicant’s administrative separation package : when notified of administrative separation processing using the notification procedure, the Applicant rights to consult with a qualified counsel, to submit a written statement, and to request an administrative board hearing.

The Applicant provided no additional documentation for the NDRB’s consideration or to rebut the government’s presumption of regularity.

: (Nondecisional): The Applicant seeks an upgrade in discharge characterization of service in order to be eligible for unspecified compensation benefits and medical benefits from the Veterans Administration. This issue does not serve to provide a foundation upon which the Board can grant relief; there is no requirement or law that grants the NDRB the authority to re-characterize discharges based solely on the issue of obtaining veterans benefits. The U.S. Department of Veterans Affairs determines eligibility for post-service benefits, not the NDRB. The VA conducts its own determination of eligibility based on service records and input from an applicant upon their request. The Applicant should refer to the Veterans Administration website ( http://www1.va.gov/opa/Is1/1.asp ) for additional assistance . Additionally, 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 solely to a determination of the propriety and the equity of a discharge. The Applicant is directed to the Addendum of this document regarding th e s e issue s .

The NDRB conducted 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 was initially recommended for administrative separation based on a dual notification of Misconduct (commission of a serious offense) regarding his violation of Articles 108, 128, and 134 and for Misconduct (drug abuse ) for his violation of the Marine Corps Policy on drugs as evidenced by the violation of Article 92. Based on the foregoing, t he Applicant requested a hearing before an administrative board pursuant to his rights. While awaiting his administrative board hearing, the Applicant tested positive for metabolites of THC (tetrahydrocannabinol)/Marijuana – an illegal, controlled substance with the presence in a Marine’s body being illegal at any time. At that time, the Applicant was subject to a S ummary C ourt -M artial, found guilty of violation of Article 112(a) and was re-notified of the command’s intent to amend the basis of the administrative discharge to include violation of Article 112(a). The Applicant subsequently withdrew his request for a board hearing.

Despite a service member’s prior record of service, certain serious offenses, 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 action usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge with the possibility of confinement if adjudicated and awarded as part of a sentence by a S pecial or G eneral C ourt- m artial. The command did not opt to pursue a punitive discharge but instead chose the more lenient administrative discharge. The Applicant withdrew his request for a hearing before a discharge board , as it was his right to do so , and, while being processed for separation, did not contest the separation .

On 25 March 2008, the Separation Authority approved the command’s recommendation for separation and directed the Applicant be discharged under other than honorable conditions for Misconduct due to drug abuse pursuant to paragraph 6210.5 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) and Misconduct, commission of a serious offense pursuant to paragraph 6210.6 of the MARCORSEPMAN . The primary basis for separation was directed to be Misconduct - Drug Abuse with the corresponding separation code of HKK1 (Drug Abuse – Board Waived). The Applicant was discharged on 04 April 2008 . The NDRB determined that the separation was proper and the narrative reason for separation was accurate. A change would be inappropriate. Relief denied.

Characterization of service at discharge is the recognition of a Marine ’s performance and conduct during a period of enlistment and is not necessarily dependent upon the narrative reason for separation. When the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under Honorable conditions. An Under Other Than Honorable Conditions discharge 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 NDRB determined the Applicant’s conduct, which forms the primary basis for determining the character of service, reflected a significant departure from th at conduct expected of a service member and the awarded characterization , as issued, was appropriate.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries , S pecial C ourt -M artial trial summary, 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 Review s 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 | MD1000105

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