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USMC | DRB | 2010_Marine | MD1000637
Original file (MD1000637.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20091229
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)       19991118 - 20000131     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20000201     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20030103      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 03 D a y ( s )
Education Level:        AFQT: 63
MOS: 3521
Proficiency/Conduct M arks (# of occasions): ( ) / ( )
Awards and Decorations ( per DD 214):      Rifle LoA

Periods of CONF :

NJP:

SCM:

- 20021007 :       Art icle (Absence without leave). Unauthorized absence from unit from 20020422 to 20020604 , 43 days .
         Art icle (Drugs - marijuana, 28 ng/ml). On or about 20020301 and 20020315 Applicant wrongfully use marijuana.
         Sentence :

SPCM:    CC:

Retention Warning Counseling :

- 20001005 :       For frequent tardiness to work
- 20020815 :       For academic drop from AE course of instruction

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.       The Applicant contends that his misconduct was mitigated by mental health issues that should be considered in determination of his overall characterization of service and warrants an upgrade to Honorable .
2.       The Applicant believes his post-service conduct is worthy of consideration.

Decision

 Date: 20 1 1 020 3            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. T he Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent sta ndards of equity and propriety. The Applicant’s record of service included 6105 counseling warnings and for of the UCMJ: Article ( Absence without leave , 43 days ) and Article ( Wrongful use, possession, etc. of a controlled substance – marijuana, 28 ng/ml ) . The Applicant a pre-service drug waiver for using marijuana prior to entering the Marine Corps acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 1 7 November 1999 . 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 rights to consult with a qualified coun sel, submit a written statement , and request an administrative board .

: (Decisional) ( ) . The Applicant contends that his misconduct was mitigated by mental health issues that should be considered in determination of his overall characterization of service. 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 recommended for administrative separation based on a notification of Misconduct due to drug abuse pursuant to his violation of the Marine Corps Policy on drugs as evidenced by the Summary Court-Martial for the illegal use of marijuana .

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 on the first offense , 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 process .

The Applicant contends that his “mental health concerns” caused his misconducts that resulted in Summary Court-Martial and ultimately a n Under Other Than Honorable Conditions discharge . As such, the Applicant contends that the determination of characterization of service should have considered mental illness as a mitigating factor to the misconduct, warranting an Honorable characterization of service. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. The NDRB found no medical diagnosis in the record to support the Applicant's claim , nor did the Applicant produce any medical diagnosis by competent medical authority to support his claim.

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 acts that were a significant departure from the conduct expected of a service member and the awarded characterization, as issued, was appropriate and was equitable . Accordingly, r elief denied .

: (Decisional) ( ) . The Applicant believes his post-service conduct is worthy of consideration. The NDRB considers 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. Besides the Applicant’s statement on the DD Form 293, and letters of recommendation from the Department of Veterans Affairs and Erie Community College South Campus , he failed to provide any documentary evidence on his behalf for post-service consideration. To warrant an upgrade , the Applicant’s post - service efforts need to be more encompassing. The Applicant could have produced evidence as stated in the Post-Service Conduct paragraph in the A ddendum with the full understanding completion of these items alone does not guarantee an upgrade. Without post-service documentary evidence, the Board determined the awarded characterization of service shall remain Under Other Than Honorable Conditions .

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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