Upgrade.Vet

USMC | DRB | 2010_Marine | MD1000947

Original file (MD1000947.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20100303

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:         USMCR (DEP)       19941212 - 19950212     Active:

Period of Service Under Review:
Date of Current Enlistment: 19950213     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19981110      H ighest Rank:
Length of Service : Y ea rs M on ths 28 D a ys
Education Level:        AFQT: 85
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( 13 ) / ( 13 )        Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle Pistol CoC

Periods of UA / CONF :

NJP:

- 19980905 :      Article (Drugs – cocaine)
         Awarded: Suspended:

SCM:     SPCM:    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:                  Other Documentation:
                  Additional Statements:
         From Applicant:          From/To Representation:          From/To Congress member:

Pertinent Regulation/Law

A. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective
31 January 1997 until 31 August 2001.

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. M ilitary record and post-service conduct warrant consideration to upgrade the characterization to Honorable, change the separation code, and change the narrative reason to Secretarial Authority.

Decision

Date: 20 1 1 0523 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 non-judicial punishment (NJP) for o f the Uniform Code of Military Justice (UCMJ): Article ( Wrongful use of a controlled substance , cocaine ). It did not include any 6105 counseling warnings or trials by court-martial for violation of the UCMJ. The Applicant did not have a pre-service drug waiver but acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 8 December 199 4 . The NDRB did not have the Applicant’s administrative separation package to determine if he waived rights to consult with a qualified coun sel, submit a written statement , and request an administrative board or a General Court-Martial Convening Authority review . T he separation code on his DD 214 indicate s he waived the admin board.

: (Decisional) ( ) . The Applicant contends that his military record and post-service conduct warrant consideration for upgrad ing the characterization of his service to Honorable, chang ing the separation code, and chang ing the narrative reason to Secretarial Authority. Despite a service member’s prior record of service, certain serious offenses , even though isolated, warrant separation from the Marine Corps to maintain proper order and discipline. Violation of Article 112a of the UCMJ is such an offense. Wrongful use of a controlled substance usually results in an unfavorable characterization of service , or at a maximum, a punitive discharge and possible confinement when adjudicated and awarded as part of a sentence by a special or general court-martial. His command, however, did not pursue a punitive discharge but opted instead for the more lenient administrative discharge.

Characterization of service at discharge is the recognition of the quality of a Marine's performance and conduct. It cannot be underestimated as the characterization of service serves as a goal for each Marine and as a meaningful endorsement to potential employers. Most Marines serve honorably; in fairness to those Marines, commanders and separation authorities are tasked to ensure that Marines receive no higher characterization than is due. An Honorable characterization of service is the highest characterization of service awarded and is appropriate when the quality of the Marine’s service has met the standards of accepted conduct and performance of duty for military personnel. 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 Applicant was found guilty at NJP for violation of Article 112a. In addition, he admitted at the personal appearance hearing that he had used cocaine on another occasion while in service. Despite commendable service over 3 ½ years, the Applicant’s conduct involved several acts that constituted a significant departure from the conduct expected of members of the U.S. Marine Corps. The Board determined that an upgrade would not be appropriate. Relief denied.

In addition to considering the Applicant’s record of service, the NDRB is authorized to consider post-service factors in the re-characterization of a discharge. However, there is no law or regulation that provides that an unfavorable discharge may be upgraded or narrative reason changed based solely the passage of time or good conduct in civilian life subsequent to leaving the service. The Applicant submitted documentation that included proof of employment, BA from Hunter College, achievement of world records, three letters from mental health professionals, resume, AA sponsor letter, and completion of numerous marathons, ultramarathons, and other road races. Unfortunately, the documentary evidence the Applicant submitted along with

the DD Form 293 and the testimony presented during the hearing were not sufficient to warrant an upgrade. By a vote of 3 to 2, the NDRB found the characterization of the Applicant’s discharge was equitable and the narrative reason proper. Relief denied.

The NDRB is not authorized to change the separation code. Only the Board for Correction of Naval Records can change the separation code.

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 is not eligible for additional reviews or hearings by the NDRB. He may petition the Board for Correction of Naval Records, 2 Navy Annex, Washington, DC 20370-5100, for further review using DD Form 149.

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 | MD1000947

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