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USMC | DRB | 2010_Marine | MD1000113

Original file (MD1000113.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)       20030103 - 2003101 3     Active:

Period of Service Under Review:
Date of Current Enlistment: 20031014     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20050610      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 29 D a y ( s )
Education Level:        AFQT: 50
MOS: 0621
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports: .

Awards and Decorations ( per DD 214):      Rifle

NJP:

- 20040812 :      Article ( UA 200405 24 to 2004052 7 , 4 days)
         Article ( Wrongfully used marijuana )
         Awarded: Suspended:

- 20050325 :      Article ( Failure to obey order )
         Article ( False official statement )
         Awarded: Suspended:

SCM:

- 200504 15 :       Art icle (UA) , 2 specifications
         Specification 1: 200412 16 to 200501 11 , 27 days
         Specification 2: UA from appointed place of duty on 200503 11
         Art icle (Disrespect ful in language ) , 2 specifications
         Specification 1: T oward 1 ^st Sgt
         Specification 2: T oward Cpl
         Art icle ( Wrongfully used marijuana )
         Sentence : (20050401-2005042 8 , 2 8 days) Suspended: NONE

SPCM:    CC:

Retention Warning Counseling :

- 20040727 :       For illegal drug involvement, specifically marijuana usage as identified through urinalysis and confirmed by NAVDRUGLAB msg R142314Z Jun 04; and you are being charged for UA from 200405 24 to 200405 28 .

- 20040813 :       For UA from 2 00405 24 to 200405 28 .

- 20050106 :       For illegal drug-related incident on 2004060 1, specifically THC usage identified through urinalysis and confirmed by NAVDRUGLAB msg R142314Z Jun 04.

- 2005020 2 :       For illegal drug-related incident on 200501 11 , specifically THC usage identified through urinalysis and confirmed by NAVDRUGLAB msg R281540Z J an 05.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative errors on the original DD Form 214:

“ 01 05 29 ”
         “ 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.       Applicant desires an upgrade to assist his employment eligibility for the Border Patrol.
2.       Applicant contends his m isconduct was due to stress/anger management problems and not willful.

Decision
Date: 20 10 0826          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 identif ied one decisional issue for consideration of the Board. T he Board complete d a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included 6105 counseling warnings ; for o f the Uniform Code of Military Justice (UCMJ): Article ( Absence without leave , ), Article ( Wrongful use, possession, etc. of controlled substance , ), Article ( Failure to obey order or regulation, ) , and Article 107 (False official statement, 1 specification) ; and for of the UCMJ: Article ( Absence without leave , ) , Article 91 (Insubordinate conduct, 2 specifications), and Article 112a (Wrongful use, possession, etc. of controlled substance, 1 specification) . The Applicant a pre-service drug waiver p rior to entering the Marine Corps acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 1 Jan uary 2003 . Based on the Article 112a violation , processing for administ rative separation is mandatory. When notified of a dministrative separation processing , the Applicant rights to consult with a qualified coun sel , request an administrative board , a nd request a General Court-Martial Convening Authority review. The Applicant did exercise his right to submit a written statement to the Convening Authority.

: (Nondecisional) The Applicant desires an upgrade to assist his employment eligibility for the Border Patrol. 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.

: (Decisional) ( ) . The Applicant contends his misconduct was due to stress/anger management problems and not willful . He refers to recent medical and counseling treatment he has received for stress and anger management, and his intent to submit documentation of such to the NDRB. To date, no substantiating documentation has been received to provide evidence to the Board that the Applicant’s administrative discharge and characterization of service, due to a pattern of misconduct and illegal drug use, were improper. Additionally, there is no documentation within the Applicant’s service record of an abnormal mental health diagnosis from a competent medical or mental health authority, to include the Applicant’s separation physical dated 14 Dec ember 2004. Moreover , when considering pre-existing medical conditions, DoD disability regulations do not preclude disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. T he Board presumed regularity in the conduct of governmental affairs as there was no substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.

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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USMC | DRB | 2010_Marine | MD1000113

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