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USMC | DRB | 2010_Marine | MD1001929

Original file (MD1001929.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20100728

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN 1900.16E [DRUG ABUSE]

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

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       19960509 - 19960623     Active:

Period of Service Under Review:
Date of Current Enlistment: 19960624     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19980206      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 14 D a y ( s )
Education Level:        AFQT: 54
MOS: 2531 / 0321
Proficiency/Conduct M arks (# of occasions): 4.0 ( ) / ( )         Fitness R eports:

Awards and Decorations ( per DD 214):      NONE

Periods of CONF :

Periods of UA: 19971106 - 19971202 (25 days)

NJP:

- 19970922 :      Article ( Failure to obey a general order or regulation; to wit, d id operate a vehicle aboard Camp Lejeune while his license was suspen ded )
         Awarded: , CCU ( 2 weeks ), Suspended: Vacated forfeiture of pay on 19971203 (Return from an Unauthorized Absence status)

- 19980120 :      Article ( Absence without leave; specifically u nauthorized absence 19971106 - 19971202, 25 days)
         Article ( Failure to obey general order or regulation - to wit , by wrongfully possessing drug abuse paraphernalia)
         Article (Drunken driving )
         Article (Wrongful use , possession etc of a controlled substance - marijuana)
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 19970221 :       For unauthorized absence and apathetic attitude toward orders and discipline

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “ NONE ”
         “ 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:                  Oth er Documentation:
                  Additional Statements :
         From Applicant:          From /To Representation:          From /To Congress m ember :

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

Decisional issues : The Applicant contends that his discharge characterization of service was inequitable - he was young and immature at the time of his service and was unable to cope with the pressures and stress of the work environment .

Decision

Date: 20 1 1 0929 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 NDRB presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant . T he NDRB completed a thorough review of the circumstances that led to the discharge action and the discharge process to ensure the discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included one paragraph 6105 retention-counseling warning and two nonjudicial punishment s for violation s of the Uniform Code of Military Justice (UCMJ): specifically, Article 86 ( Unauthorized absence) , Article 92 (Failure to obey orders or regulations - 2 specifications) , Article 111 ( D runken operation of a motor vehicle) , and Article 112(a) (Wrongful use, possession, etc of a schedule I controlled substance – marijuana ). The Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs - in writing - on 09 May 1996 as a function of his enlistment with waiver for drugs and alcohol . Based on the Applicant’s violation of Article 112(a), processing for administrative separation was mandatory. The Applicant’s service record does not contain a complete copy of the administrative discharge package to enable a review of the Applicant’s election of rights. The NDRB presumed regularity in that the Applicant was properly notified and was afforded the opportunity to elect his rights. The record does reflect that the Applicant waived his right to elect a hearing and present his case for retention before an administrative discharge board .

(Decisional issue) ( ) . The Applicant contends that his discharge characterization of service was inequitable - he was young and immature at the time of his service and was unable to cope with the pressures and stress of the work environment. Despite a service member’s prior record of service, certain serious offenses, though isolated, war rant separation from the Naval S ervice in order to maintain good order and discipline of the service . Violation of Article 112(a) is one such offense requiring mandatory processing for administrative separation, regardless of grade, performance, service record, or time in service. Moreover, t his action usually results in an unfavorable characterization of service at discharge or, at a maximum, a punitive discharge with the possibility of confinement, if adjudicated and awarded as part of a sentence by a special or general court-martial. The Applicant’s command did not opt to pursue a punitive discharge but instead chose the more lenient nonjudicial punishment and administrative discharge process.

There is no evidence in the record, nor did the Applicant provide any documentation, to indicate he attempted to u s e the numerous services available for service members who undergo personal problems during their enlistment such as the Navy Chaplain, Medical or Mental Health professionals, Navy Relief Society, Family Advocacy Programs, or even the Red Cross. The Applicant went home on authorized annual leave and then chose to remain away from the command, without authority, for 25 days before he surrendered himself to his command. While in an unauthorized absence status, the Applicant chose to violate knowingly the UCMJ and Marine Corps Policy by using illegal drugs (marijuana). The NDRB determined the Applicant’s personal challenges were not mitigating factors in his misconduct. Relief denied.

Characterization of service at discharge is the recognition of a Marine’s performance and conduct during a period of enlistment and is not necessarily dependent upon the narrative reason for separation. 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 that conduct expected of members of the Naval S ervice. The NDRB determined the Applicant’s conduct, which forms the primary basis for determining the character of service, reflected a significant departure from that conduct expected of

a service member . Moreover, the Applicant’s misconduct, coupled with illegal d rug use , represent ed specific act s or omission s that did constitute a significant departure from the conduct expected of a Marine. By a vote of 5-0, the NDRB determined that the narrative reason for separation and the resulting characterization of service at discharge was proper, was equitable, was warranted, and was and still remains consistent with the characterization of discharge given others in similar circumstances. Accordingly, relief as requested is denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, and the discharge process, the NDRB determined that 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, specifically the paragraphs titled Additional Reviews 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 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 | MD1001929

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