Upgrade.Vet

USMC | DRB | 2010_Marine | MD1001813

Original file (MD1001813.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20100713

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)       20010131 - 20010904     Active: 20010905 - 20050705 HON

Period of Service Under Review:
Date of Current Enlistment: 20050706     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070525      H ighest Rank:
Length of Service : Y ea rs M on ths 21 D a ys
Education Level:        AFQT: 59
MOS: 3051/3112
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (2) MUC (2) MM

Periods of UA / CONF :

NJP: 2

- 20070129 :      Article , (Absence without leave, absent from appointed place of duty, 20070119 from 0630 to 0930 )
         Awarded : Susp ended: (Vacated 20070208)

- 20070215:      Article 92 (Failure to obey order or regulation, possession of a weapon on a federal installation)
         Article 134 (General article, unlawful concealed weapon in his vehicle aboard federal installation)
         Awarded: RIR FOP RES TR Suspended: FOP

SCM:     SPCM:    CC:

Retention Warning Counseling : 2

- 20070426:      For wrongful use of controlled substance, MDMA and insubordinate conduct toward a SNCO .

- 20070503 :       For failure to be appointed place of duty on 20070502 from 0630 to 0915 .

Administrative Corrections to the Applicant’s DD 214

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

         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 20010905-20050705 ”

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 he did not knowingly take any drug.
2.       The Applicant contends the urine sample for his positive drug test had a flawed chain of custody.
3.       Post-service.
Decision

Date: 2011 0825          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 discharg e if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of g overnment al affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service included 6105 counseling warnings and for o f the Uniform Code of Military Justice (UCMJ): Article ( Unauthorized absence, : 3 hours ), Article ( , ), and Article ( : Unlawful concealment of a weapon in his vehicle aboard a federal installation , ). The Applicant a pre-service drug waiver for using marijuana prior to entering the Marine Corps, and acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 1 Jan 2003 . Based on the offenses committed by the Applicant, command administratively processed for separation. Based on the Article 112a violation (Wrongful use, possession of a controlled substance) , 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 c onsult with a qualified counsel. The Applicant’s separation code on his DD-214 shows he received an administrative board .

: (Decisional) ( ) . The Applicant contends he did not knowingly take any drug. The record shows the Applicant tested positive for MDMA while in the Mar i ne Corps. The Applicant provided no document ation to support his contention or to overcome the NDRB’s presumption of regularity in the conduct of governmental affairs. In the absence of substantial, documentary evidence, the NDRB determined an upgrade would be inappropriate.

: (Decisional) ( ) . The Applicant contends the urine sample for his positive drug test had a flawed chain of custody. The record revealed no indication of impropriety with regard to the chain of custody for the Applicant’s positive urine sample. The Applicant provided no do cumentation to support his contention or to overcome the NDRB’s presumption of regularity in the conduct of governmental affairs. In the absence of substantial, documentary evidence in support of this issue, the NDRB determined an upgrade would be inappropriate.

: (Decisional) ( ) . The Applicant requested the NDRB consider post - service conduct as a basis to gain a more thorough understanding of performance and conduct during his enlistment. The Applicant provided three negative post-service drug tests and a letter from a psychiatrist in support of a hand gun purchase background check. The Applicant ’ s post-service efforts need to be more encompassing. The Applicant could have provided documentation as specified in the Post-Service Conduct paragraph in the Addendum with the knowledge that completion of these items does not guarantee an upgrade as each discharge is reviewed by the Board on a case by case basis to determine if post - s ervice conduct establishes a reason to upgrade a discharge . The NDRB determined the Applicant’s post-service documentation was insufficient .

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 . 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 Disabled 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

NAVY | DRB | 2007_Navy | ND0700984

Original file (ND0700984.rtf) Auto-classification: Denied

After a review of the Applicants records, including the transcript of the administrative board,it was discovered the Applicant was given an opportunity to delay the board due to a possible conflict of interest with her legal representation and the board recorder. The Board determined an upgrade was not warranted.After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the...
NAVY | DRB | 2006_Navy | ND0600049

Original file (ND0600049.rtf) Auto-classification: Denied

The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. ), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.000329: An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse that such misconduct warranted separation, and...
NAVY | DRB | 2006_Navy | ND0601181

Original file (ND0601181.rtf) Auto-classification: Denied

USS JOHN C. STENNIS APPOINTMENT OF AN ADMIN BOARD ICO APPLICANT Medical Record Entries Related to Characterization of Service or Narrative Reason for Separation NONE Elements of Discharge: [INVOLUNTARY] Discharge Process: Date Notified:20050805Reason for Discharge due to: due to: Least Favorable Characterization: Record Supports Narrative Reason: Date Applicant Responded to Notification: 20050805Rights Elected at Notification:Consult with Counsel Administrative Board Obtain Copies Submit...
USMC | DRB | 2015_Marine | MD1401585

Original file (MD1401585.rtf) Auto-classification: Denied

Administrative Corrections to the Applicant’s DD 214 The NDRB did note administrative error(s) on the original DD Form 214: Block 28, Narrative Reason for Separation, should read: "MISCONDUCT" The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate. 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...
USMC | DRB | 2009_Marine | MD0902347

Original file (MD0902347.rtf) Auto-classification: Denied

C. Marine Forces Reserve Force Order P5800.6A (MarForRes Legal Standard Operating Procedures) DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.Decisional issues: (Propriety) Applicant contends that he was unjustly accused and processed for separation due to chain of custody errors involved with the Command Directed Urinalysis test samples; as such, he should not have received Nonjudicial Punishment nor been separated from the...
USMC | DRB | 2013_Marine | MD1301443

Original file (MD1301443.rtf) Auto-classification: Denied

of controlled substances)- 20110425: For drug abuse and advisement of being processed for administrative separation Types of Documents Submitted/reviewedRelated 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...
NAVY | DRB | 2010_Navy | ND1001800

Original file (ND1001800.rtf) Auto-classification: Denied

The Applicant contends his Administrative Separation Board (ASB) proceeding was not recorded. ” 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. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.
NAVY | DRB | 2007_Navy | ND0700645

Original file (ND0700645.rtf) Auto-classification: Denied

After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and service record entries, discharge process and evidence submitted by the Applicant, the Board found that Summary of Service Prior Service: Inactive: USNR (DEP) 20010130 - 20010313 Active: Period of Service Under Review: Date of Enlistment: 20010314Years Contracted:Date of Discharge: 20011218Length of Service: 00 Yrs 09Mths05 Dys Lost Time: Education Level: GED Age at Enlistment: AFQT:...
USMC | DRB | 2011_Marine | MD1100564

Original file (MD1100564.rtf) Auto-classification: Denied

Applicant’s Request:Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive:USMCR (DEP)20080320 - 20080511Active: Period of Service Under Review: Date of Current Enlistment: 20080512Age at Enlistment: Period of Enlistment: Years MonthsDate of Discharge:20100304Highest Rank:Length of Service: Year Months23 DaysEducation Level: AFQT:61MOS: 3043Proficiency/Conduct Marks (# of occasions):()/()Fitness Reports: Awards and Decorations (per DD 214):Rifle...
USMC | DRB | 2006_Marine | MD0600720

Original file (MD0600720.rtf) Auto-classification: Denied

The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. Issues Equity: Post service Documentation In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:Letter from Applicant, undatedApplicant’s DD Form 214(Member Copy 4) PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Inactive: USMCR (DEP) 20000808 -...

Search Decisions

Decision Text

USMC | DRB | 2010_Marine | MD1001813

Similar Decisions