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USMC | DRB | 2010_Marine | MD1001432
Original file (MD1001432.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20100517
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to: Acceptable

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       20040406 - 20040907     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20040908     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20090227      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 20 D a y ( s )
Education Level:        AFQT: 96
MOS: 3432
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (2) Pistol (2) GWOTSM CoA MM

Periods of UA :

NJP:

- 20051229 :       Article ( Insubordinate conduct toward warrant, noncommissioned, petty officer - d isrespect to a non-commissioned officer)
         Article (Fail to obey order, regulation )
          Awarded: Suspended:

- 20070223 :      Article ( Fail to obey order, regulation , v iolate a lawful general order by having a female marine in his BEQ room after prescribed visiting hours)
         Awarded: Suspended:

- 20081121 :       Article ( Wrongful use, possession, etc, of controlled substances - MDA 2 , 171 ng/ml MDMA 24 , 828 ng/ml)
         Awarded: Suspended:

SCM:

- 20090206 :       Art icle (Wrongful use, possession, etc, of controlled substances, 3 specifications )
         Specification 1: ( Wrongful use, possession, etc, of controlled substances - cocaine 278 ng/ml)
         Specification 2: ( Wrongful use, possession, etc, of controlled substances - ecstasy 9512 ng/ml)
         Specification 3 : ( Wrongful use, possession, etc, of controlled substances - MDA 825 ng/ml)
          Sentence : (20090206 - 20090222, 17 days)

SPCM: CC:



Retention Warning Counseling s :

- 20051229 :       For viol ation of Art 91, insubordinate conduct toward a Warrant Officer, Noncommissioned Officer, or Petty Officer . F or viol ation of Art 92 x2 , failure to obey order or regulation, for Viol ation of Art 117 provoking speeches or gestures

- 20071223 :       For viol ation of Art 92 by violating barracks regulations by having a female marine in my BEQ room after visiting hours

- 20081009 :       For viol ation of Art 92 specification 3:failure to obey a lawful order, you did not on numerous occasions, contact the chain of command to report incidents in the barracks, Art 92 specification 4: did not notify Military Police after a Marine reported suspected Drug use in the barracks

- 20081117 :       For wrongful use of a controlled substance MDA 2171 ng/ml MDMA 24,828 ng/ml

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 ”
         “ 04 YEARS 05 MONTHS 20 DAYS ”

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.       The Applicant contends his discharge is inequitable because the basis for the court - martial was an illegal urinalysis test.
2.       The Applicant contends his discharge is improper because he was held on active duty for 5 days beyond his EAS upon completion of serving his court - martial sentenc e .

Decision

Date : 20 1 1 0505            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 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 ( Insubordinate conduct toward warrant, noncommissioned, petty officer - disrespect to a non-commissioned officer ), Article ( Fail to obey order, regulation ), and Article ( Wrongful use, possession, etc, of controlled substances - MDA 2 , 171 ng/ml and MDMA 24,828 ng/ml ) , and summary court-martial for of the UCMJ: Article ( Wrongful use, possession, etc, of controlled substances, 3 specifications: specification 1 - cocaine 278 ng/ml ; specification 2 - ecstasy 9 , 512 ng/ml ; specification 3 - MDA 825 ng/ml ). The Applicant a pre-service drug waiver for using marijuana 20 times prior to entering the Marine Corps, acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 14 M arch 2004 . 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 his right to consult with a qualified coun sel, but waived his rights to submit a written statement and request an administrative board .

: (Decisional) ( ) . The Applicant contends his discharge is inequitable because the basis for the court - martial was an illegal urinalysis test. The Applicant did consult with counsel but did not request a hearing before an administrative separation board and did not include a written statement. Additionally, the Applicant appeared before a summary court-martial. If the Applicant felt he was illegally tested, it was his obligation to contest those charges at the time they were made. During an administrative separation board, he would have had the opportunity to mount a defense against the charges against him. The Applicant submitted no evidence to support his contention; therefore , the NDRB relied upon the presumption of regularity in the conduct of government affairs. Relief denied.

Furthermore, the ND RB disagrees with the Applicant’ s contention that the discharge was inequitable. After reviewing the Applicant ’ s service record, the NDRB determined the characterization of the Applicant ’ s discharge as Under O ther Than H onorable was equitable and consistent with the characterization of discharge given others in similar circumstances.
: (Decisional) ( ) . The Applicant contends his discharge is improper because he was held on active duty for 5 days beyond his EAS upon completion of serving his court - martial sentenc e . Pursuant to Section 1008 of the Marine Corp s S epa ra tion and Retirement M anu a l (MARCORSEPMAN) , a Ma r ine may be retain ed on active duty at the c onvenience of the g overn ment when that Marine is receiving a n administrative separation upon a basis that may result in an Other Than Honorable C onditions characterization of service. Additionally, the Applicant’s record reflects that his approval for separation from the Commanding General, 1 st Marine Logistics Group , via letter, was received on 26 Feb 2009. The letter instructed the Applicant ’ s command to effect separation of the Applicant within five working day s. The Applicant was separated from the Marine Corp s on 2 7 Feb ruary 2009.


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

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