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USMC | DRB | 2010_Marine | MD1002032
Original file (MD1002032.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20100811
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)       19960927 - 19961209     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19961210     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19991109      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 00 D a y ( s )
Education Level:        AFQT: 74
MOS: 6060
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:
- 19960626 :      Article ( Wrongful use, possession, etc of schedule I controlled substance - methamphetamines)
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling :
- 19990716 :       For misconduct: illegal drug use (methamphetamines).

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 ”

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

 1.       Nondecisional issues: The Applicant seeks a change in the characterization of his service at discharge in order to facilitate access to Department of Veterans Affairs e ducational b enefits a nd to better facilitate government employment.

2.       Decisional issues : The Applicant contends that his characterization of service at discharge was inequitable based on the recommendations of his witnesses that were present at his administrative hearing board.

Decision

Date: 20 1 1 08 25   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. The Applicant identified one decisional issue for the NDRB’s consideration; additionally, the NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety.

The Applicant’s record of service included on e paragraph 6105 retention-counseling warning and one non-judicial punishment for violation of the Uniform Code of Military Justice (UCMJ), specifically: Article 112a (Wrongful use, possession, etc of a schedule I controlled substance – methamphetamines ). The Applicant’s enlistment record reflects his entry into military service with a pre-service waiver for drug use - marijuana, without police involvement. Furthermore, the Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs, in writing, on 18 September 1996 . Based on the violation of Article 112(a), processing for administrative separation was mandatory. The NDRB reviewed the Applicant’s administrative separation package: W hen notified of administrative separation for both an established pattern of misconduct and misconduct drug abuse using the notification procedure, the Applicant exercised his right to consult with a qualified legal counsel and requested to present his case before an administrative discharge hearing board.

A properly constituted administrative discharge hearing board was convened by the Commanding Officer to hear the Applicant’s defense regarding the propose d separation action for his misconduct. By a vote of 3-0, the board determined that a preponderance of the evidence presented supported a finding of misconduct. Furthermore, by a vote of 3-0, the board determined that the Applicant had no rehabilitative potential and the separation was warranted. Based on the Applicant’s total record of misconduct while in service, coupled with his documented performance and conduct, the board recommended that the Applicant’s characterization of service did reflect acts or omissions that constitute d a significant departure from the conduct expected of members of the Naval service . As such, by a vote of 3-0, they recommended discharge with an Under Other Than Honorable Conditions characterization . The Separation A uthority agreed with the findings of the administrative discharge hearing board and the recommendations of the chain of command and directed the Applicant’s separation, as documented . The Applicant received an RE-1A reentry code (recommended for reenlistment) as documented on his DD Form 214 ; the Service standard reentry code assigned for discharges due to Misconduct (Drug Abuse) with an Under Other Than Honorable Conditions characterization of service is RE-4B (not recommended for reenlistment – in service drug abuse) .

The Applicant provided additional documentation for the NDRB’s consideration in the form of character references and recommendations by fellow service members that were also presented to the a dministrative discharge hearing boa rd in the Applicant’s defense.




(Nondecisional Issue): The Applicant seeks an upgrade in discharge characterization of service in order to be eligible for educational benefits from the Veterans Administration. This issue does not serve to provide a foundation upon which the NDRB can grant relief; there is no requirement or law that grants the NDRB the authority to re-characterize discharges based solely on the issue of obtaining veterans benefits. The U.S. Department of Veterans Affairs determines eligibility for post-service benefits, not the NDRB. Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge. The Applicant is directed to the Addendum of this document regarding these issues.

 ( Decisional Issue) (Equity/Propriety) . The Applicant contends that his characterization of service at discharge was inequitable based on the character recommendations of witnesses that were present at his administrative discharge hearing board. Despite a service member’s prior record of service, certain serious offenses, though isolated, warrant separation from the Naval S ervice in order to maintain proper order and discipline. 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. This 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 c ommand did not opt to pursue a punitive discharge , but instead , chose the more lenient administrative discharge process. The Applicant contest ed the separation and presented his case to a properly constituted administrative discharge hearing board . The evidence of record was a single documented use of methamphetamines; however, the record also includes the Applicant’s medical evaluation by the S ubstance Abuse Rehabilitation Program. This evaluation documented the Applicant’s open admission that he was dependant and had been using illegal drugs increasingly in the past two years, resulting in use of methamphetamines on a frequent basis of 4 to 5 uses per month. For treatment of the Applicant’s dependency, he was transferred to an inpatient drug and alcohol treatment facility for a 30 day intensive treatment program. All service members separated for drug abuse are screened for drug 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. Based on the evidence of record, t he NDRB determined that the separation was warranted, was proper , and that the narrative reason for separation was accurate. A change would be inappropriate. Relief denied.
The Applicant contends his discharge was inequitable because other service member s attested to his character and recommended retention. The Applicant presented his case and his witnesses to an administrative discharge hearing board. The b oard considered the Applicant’s testimony and documentary evidence in making their decisions. 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. When the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under Honorable conditions. 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 S ervice. The NDRB determined the Applicant’s conduct, which forms the primary basis for determining the character of service, was highlighted by acts that reflect ed a significant departure from that conduct expected of a service member and the awarded characterization, as issued, was appropriate. 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 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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