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USMC | DRB | 2010_Marine | MD1000560

Original file (MD1000560.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20091204

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)       20051110 - 20051204     Active:

Period of Service Under Review:
Date of Current Enlistment: 20051205     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20090511      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 07 D a y ( s )
Education Level:        AFQT: 43
MOS: 2311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of CONF :

NJP:
- 20090115 :       Article (Wrongful use of a controlled substance, ( NAVDRUGLAB - 25 ng/ml THC)
         Awarded : Susp ended:

SCM:     SPCM:    CC:

Retention Warning Counseling : 1
- 20070323 :       For failure to obey a direct order for being UA from 20070321 to 20070322. On your leave papers you were ordered to return to work on 20070321 at 0730, you did not return to work until 20070322 at 0645.

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.       Nondecisional issues : None

2.       Decisional issues : (Equity) The Applicant contends that his characterization of service at discharge was inequitable as it was related to one isolated incident in what was otherwise an honorable period of enlistment.

Decision

Date: 20 1 1 0201         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 identified one decisional issue for the NDRB’s consideration . In reviewing the Applicant’s issue, the 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 one 6105 retention-counseling warning and one nonjudicial punishment for violation of the Uniform Code of Military Justice (UCMJ): Article 112(a) (Wrongful use, possession, etc of a controlled substance – Marijuana, 25 ng/ml) .

The Applicant’s enlistment record reflects his entry into military service with a pre-service waiver for drug use - marijuana, without police involvement and a waiver for depend e nts . Furthermore, the Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs, in writing, on 17 November, 200 5 . Based on the Article 112a violation, processing for administrative separation from the service was mandatory. The NDRB reviewed the Applicant’s administrative separation package to ensure he was afforded all rights as required by the Marine Corps Separation and Retirement Manual (MARCORSEPMAN). When notified of administrative separation processing using the notification procedure, the Applicant exercised right to consult with a qualified counsel but did not submit a written statement to the Separation Authority and chose to waive his right to request an administrative board hearing.

The Commanding Officer considered referring th e alleged violation of the UCMJ for adjudication through trial by Special Court - Martial in which a determination of guilt could have resulted in the awarding of confinement for up to two years and a punitive discharge . With the advice of counsel, t he Applicant opted to enter into a pre-trial agreement with the Commanding Officer whereby the Commanding Officer would con sider the A pplicant ’s ple a of guilt y and his waive r of h is right to an administrative discharge board hearing as a sign of remorse and personal acceptance of responsibility . In consideration of the se actions by the Applicant , the Commanding Officer further stipulated that he would accept nonjudicial punishment and administrative separation as appropriate forum s for addressing the misconduct .

The Applicant provided no additional documentation for the NDRB’s consideration in his discharge review or to rebut any presumption of regularity by the NDRB .

: (Decisional) ( ) . The Applicant contends that his characterization of service at discharge was inequitable as it resulted from one isolated incident in what was otherwise an honorable period of enlistment.

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. T he Applicant was recommended for administrative separation in accordance with paragraph 6210.5 of the MARCORSEPMAN - Misconduct (drug abuse) . The Applicant was properly notified of the proposed separation processing and elected his rights - in writing . Furthermore, he accepted a pre-tr i al agreement in which he waived his right to an administrative hearing board. The Separation Authority determined that the recommendations of the Applicant’s chain of command , coupled with a pre-service waiver for marijuana, supported the reason for separation and were sufficient in law and fact to support discharge. In accordance with the MARCORSEPMAN, the applicant was screened for substance abuse dependence and was further screened for signs of possible Post - Traumatic Stress Disorder as required by the Marine Expeditionary Force Commanding General , despite no record of combat deployments .

On 05 May 2009 , the Separation Authority approved the command’s recommendation for separation and directed the Applicant be discharged U nder O ther T han H onorable C onditions for m isconduct due to drug abuse pursuant to paragra ph 6210.5 of the MARCORSEPMAN with a corresponding separation code of HKK1 (Drug Abuse – Board Waived). The Applicant was discharged on 11 May 200 9 . The NDRB determined that the separation was proper and the narrative reason for separation was accurate. A change in narrative reason for separation would be inappropriate. Relief denied.

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 special or general court-martial. The command did not opt to pursue a punitive discharge but instead chose the more lenient administrative discharge process. The Applicant did not contest the separation action.

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 characterization of service 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, did reflect a significant departure from that conduct expected of a service member by one or more acts or omissions and the awarded characterization, as issued, was appropriate , was equitable , and was consistent with the characterization of discharge given others in similar circumstances . Accordingly, r elief 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 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 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 | MD1000560

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