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USMC | DRB | 2010_Marine | MD1001645
Original file (MD1001645.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20100622
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)       20010830 - 20011125     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20011126     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20021220      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 25 D a y ( s )
Education Level:        AFQT: 39
MOS: 3533
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:

- 20020809 :      Article ( W rongful use, possession, etc., of controlled substance - THC 73 ng/ ml)
         Awarded: Suspended:

SCM: SPCM: CC: Retention Warning Counseling :

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 too harsh, and it is an i n justice for him to continue to suffer the adverse consequences of a bad discharge .
2.       The Applicant contends he warrants an upgrade base d on his record of service as indicated by the awards, decorations, and good proficiency and conduct marks.
3.       The Applicant contends his ability to serve was impaired by his youth and immaturity , and personal problems and drinking led him to make a bad decision . He wanted to serve and did well in rehab, but he wasn’t allowed to continue his service.
4.       The Applicant contends he has lived as a good and productive citizen since his discharge.

Decision

Date: 20 1 1 0 519            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 for o f the Uniform Code of Military Justice (UCMJ): Article ( Wrongful use, possession, etc., of controlled substance - THC 73 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 12 A ugust 2001 . 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 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 too harsh, and it is an injustice for him to continue to suffer the adverse consequences of a bad discharge. Certain serious offenses warrant separation from the service 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 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 command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. In no way was an Other Than Honorable discharge inconsistent with discharges given to other Marines with the same offense. Relief denied.

: (Decisional) ( ) . The Applicant contends he warrants an upgrade based on his record of service as indicated by the awards, decorations, and good proficiency and conduct marks. Per the Marine Corps Separation and Retirement Manual, an Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. 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. Illegal use of drugs is considered conduct involving one or more acts or omissions that constitute s a significant departure from the conduct expected of members of the Naval Service . Additionally, the Applicant’s proficiency/conduct marks of 4.1/3.8 are considered below average and would not warrant an Honorable characterization of service if the Applicant had finished his enlistment.

Also, the Applicant indicates that he was awarded the Good Conduct Medal. This is incorrect. To be awarded a Good Conduct Medal, a Marine must serve without misconduct for three years. The Applicant was convicted at NJP for violation of UCMJ Article 112a during his one year of service. The confusion likely arose from Block 18 of his DD Form 214, which indicates a re-start date of 29 Aug 2002 to calculate his three-year counter for the Good Conduct Medal after his August 2002 NJP conviction. Relief denied.

: (Decisional) ( ) . The Applicant contends his ability to serve was impaired by his youth and immaturity, and personal problems and drinking led him to make a bad decision. He wanted to serve and did well in rehab, but he wasn’t allowed to continue his service. The NDRB does not find that youth, immaturity, and consumption of alcohol mitigate the illegal use of drugs. The NDRB recognizes that many of our servicemembers are young at the time they enlist for service but still manage to serve honorably. While we understand some members may be less mature than others, the NDRB does not view a member’s claim of immaturity , youthfulness, or inability to control one’s actions after drinking alcohol to be mitigating factor s or sufficient reason s for misconduct. All servicemembers separated for drug abuse are screened for drug and alcohol dependency and provided the option of treatment prior to separation. The intent of this treatment is for the benefit of the Applicant after discharge, not to rehabilitate the Applicant for continued service. The NDRB determined the awarded discharge characterization was warranted.

4 : (Decisional) ( ) . The Applicant contends he has lived as a good and productive citizen since his discharge. 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, he provided several letters of personal reference. The Applicant should be aware submission of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the NDRB on a case-by-case basis. The NDRB determined the Applicant did not provide sufficient post-service documentary evidence to form a basis of relief. To warrant an upgrade , the Applicant’s post - service efforts need to be more encompassing. The Applicant could have produced additional evidence as stated in the Post-Service Conduct paragraph in the Addendum with the full understanding completion of these items alone does not guarantee an upgrade. The Board determined the characterization of service received, Under Other Than Honorable Conditions, was an appropriate characterization considering the length of service and the UCMJ violation involved. 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

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