Upgrade.Vet

USMC | DRB | 2010_Marine | MD1001344

Original file (MD1001344.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20100416

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)       20010504 - 20010605     Active: 20010606 - 20041005 HON

Period of Service Under Review:
Date of Current Enlistment: 2004100 6     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 200505 1 6      H ighest Rank:
Length of Service : Y ea rs M on ths 00 D a ys
Education Level:        AFQT: 67
MOS: 3451
Proficiency/Conduct M arks (# of occasions): /          Fitness R eports:

Awards and Decorations ( per DD 214):      CERT COMM LOC

Periods of UA / CONF :

NJP:

- 20050119 :       Article ( Wrongful use of controlled substance, marijuana )
         Awarded : Susp ended:

SCM:

SPCM:

CC:

Retention Warning Counseling :

- 20041214 :       Unauthorized Absence

Administrative Corrections to the Applicant’s DD 214

The NDRB note d an administrative error on the original DD Form 214:

         “ 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 Serv ice:                References:
         Department of VA letter:                  Other Documentation:
                  Additional Statements:
         From Applicant:          From/To Representation:          From/To Congress member:

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 seeks an upgrade to enhance employment opportunities .
2 . The Applicant contends he has never used illegal drugs and that he ate brownies laced with marijuana unknowingly.
3 . The Applicant contends his discharge is inequitable , because it was based on an isolated incident and he had a stellar record of service for four years .
4 . The Applicant believes his post-service conduct is worthy of consideration.

Decision

Date: 20 1 1 0407 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 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 warning and for o f the Uniform Code of Military Justice (UCMJ): Article (Wrongful use of controlled substance, marijuana). 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 04 May 2001 . Based on the Article 112a violation , processing for administ rative separation is mandatory. The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant 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 . However, the Applicant has a separation code of HKK1 on his DD 214 , which indicates he waived his right to an administrative board.

: (Nondecisional) The Applicant seeks an upgrade to enhance employment opportunities. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

: (Decisional) ( ) . The Applicant contends he has never used illegal drugs and that he ate brownies laced with marijuana unknowingly. The Applicant ha d a waiver for smoking marijuana five times and having two driving under the influence charges prior to his enlistment. Following his positive urinalysis test in 2005, he submitted a signed statement on 27 April 2005 that said he smoked marijuana w ith friends on New Year’s Eve in 2004. Relief denied.

: (Decisional) ( ) . The Applicant contends his discharge is inequitable , because it was based on an isolated incident and he had a stellar record of service for four years . Despite a service member’s prior record of service , certain serious offenses, even though isolated, warrant separation from the Marine Corps 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 , time in service , or performance . This usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The Applicant was found guilty of violation of Article 112a. However, his command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. The NDRB determined an upgrade would be inappropriate. Relief denied.

4 : (Decisional) ( ) . The Applicant believes his post-service conduct is worthy of consideration , though he provided no documentation in support of this claim . The Applicant could have provided doc umentation as detailed in the Post-Service Conduct paragraph in the Addendum with the full understanding that completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis. Relief 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 for additional information.

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

Similar Decisions

USMC | DRB | 2014_Marine | MD1400989

Original file (MD1400989.rtf) Auto-classification: Denied

Applicant’s Request:Characterization change to: Narrative Reason change to: Summary of ServicePrior Service: Inactive:USMCR (DEP)19990421 - 19990920Active:Pre-Service Drug Waiver: Period of Service Under Review: Date of Current Enlistment: 19990921Age at Enlistment: Period of Enlistment: Years MonthsDate of Discharge:20030214Highest Rank:Length of Service: Year(s)Month(s)24 Day(s)Education Level: AFQT:67MOS: 4066Proficiency/Conduct Marks (# of occasions):()/()Fitness Reports: Awards and...
USMC | DRB | 2014_Marine | MD1401468

Original file (MD1401468.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. Relief 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 remainUNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remainMISCONDUCTThe Applicant remains eligible for a...
USMC | DRB | 2010_Marine | MD1000100

Original file (MD1000100.rtf) Auto-classification: Denied

The Applicant contends, “As stipulated in Sections 6306, 6308, 6308.1(a), 6308.1(b), 6308.1(c)(2), and 6316.1, the Separation Authority staff did not conduct a thorough legal review of the [administrative board] proceedings, i.e., legal review did not comment on the merits of numerous specific legal issues raised by Defense Counsel in the 20 Jul 08 Appeal/Letter of Deficiency, did not set forth facts and reasoning leading to a determination, did not recommend corrective action, and did not...
USMC | DRB | 2014_Marine | MD1401052

Original file (MD1401052.rtf) Auto-classification: Denied

Relief 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. ” Additional Reviews : After a document review has been conducted, former members are...
NAVY | DRB | 2014_Navy | ND1400403

Original file (ND1400403.rtf) Auto-classification: Denied

Representation: 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...
USMC | DRB | 2013_Marine | MD1301849

Original file (MD1301849.rtf) Auto-classification: Denied

Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.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. ...
NAVY | BCNR | CY2013 | NR1360 13

Original file (NR1360 13.pdf) Auto-classification: Approved

Enclosure (2) h. On 23 August 2004 Petitioner was so discharged. wa The majority of the Board also relies upon the advisory opinion from the Marine Corps Judge Advocate Division which recommended an upgrade to Petitioner's reenlistment code; removal of all adverse material in Petitioner's Official Military Personnel File pertaining to administrative separation ror misconduct due to drug abuse; and that all associated relief be granted. The minority notes that Petitioner was found guilty...
USMC | DRB | 2015_Marine | MD1500425

Original file (MD1500425.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. However, the NDRB reviewed the documentation provided by the Applicant which included medical treatment records in service and from the VA confirming a PTSD diagnosis along with character statements. ” 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...
USMC | DRB | 2009_Marine | MD0900986

Original file (MD0900986.rtf) Auto-classification: Denied

The Applicant’s record reflects one NJP and one SCM.The NDRB determined his punishment was appropriate for his level of misconduct.Issue 5: (Decisional) () . Additionally, upon receipt of the Applicant's DD Form 293, the NDRB mails an acceptance letter that includes Information Concerning Review Procedures , which discusses the submission of additional documents in paragraph 3, Submission of Evidence , and in the last section on page 4, Information Pertaining to a Review Based Upon...
USMC | DRB | 2013_Marine | MD1301860

Original file (MD1301860.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. ” 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. There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans benefits and this issue does not serve to...

Search Decisions

Decision Text

USMC | DRB | 2010_Marine | MD1001344

Similar Decisions