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USMC | DRB | 2010_Marine | MD1002035
Original file (MD1002035.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20100810
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)       20030826 - 20031005     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20031006     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070824      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 19 D a y ( s )
Education Level:        AFQT: 57
MOS: 3051
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (WITH BRONZE STAR )

Periods of UA / CONF : UA: 20070622-20070625, 4 days /CONF:

NJP:

- 20050429 :      Article (Disrespect to a C hief Warrant Officer (CWO 2 ) by using inappropriate language , in time of war, while aboard Camp Taqaddum, Iraq )
         Article 90 (Disobe dience of a C hief Warrant Officer (CWO 2 ) order in time of war, while aboard Camp Taqaddum, Iraq )
         Article 128 (Assault of a Chief Warrant Officer ( CWO 2 ) by using threatening words and gestures , in a time of war, aboard Camp Taqaddum, Iraq )
          Awarded: Suspended:

- 20051118 :      Article (Insubordinate conduct toward a noncommissioned officer in the execution of his office , in time of war, while aboard Camp Al-Asad, Iraq )
         Article (Provoking speeches or gestures by threatening to cut and kill a fellow Marine , in time of war, while aboard Camp Al-Asad, Iraq )
         Awarded: Suspended:

SCM:

- 20070412 :       Art icle (Drugs - THC 23 ng/ml)
         Sentence :

SPCM:    CC:





Retention Warning Counseling :

- 20051118 :       For your NJP held on 20051117 for Article 91/117. Specifically on or about 0700, 20050905 you were disrespectful in language to a noncommissioned officer and you threatened to cut and kill that noncommissioned officer.

- 20060921 :       For failure to obey order or regulation. On 20060915 Applicant failed to maintain minimum uniform requirements per Marine Corps Clothing Regulation MCO P1020.34G with change one. Applicant was told to be in Charlies for uniform inspection as well as BEQ inspection and failed to follow this order.

- 20070412 :       For my illegal drug involvement, THC usage identified through urinalysis confirmed by Navy Drug Lab Jacksonville, FL message J07B0417042 dated 20070212.

- 20070618 :       For your illegal drug involvement, marijuana usage identified through urinalysis confirmed by NDSL Jacksonville, FL repot 20070220. I understand that I am being processed for administrative separation.

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: “ SEA SERVICE DEPLOYMENT RIBBON (W/1 BRONZE STAR), IRAQ CAMPAIGN MEDAL (2), GLOBAL WAR ON TERRORISM SERVICE MEDAL, NATIONAL DEFENSE SERVICE MEDAL, RIFLE SHARPSHOOTER BADGE ”

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. Nondecisional issues: The Applicant seeks relief in the form of an upgrade in the characterization of service at discharge in order to apply for department of Veteran Affairs (VA) educational benefits programs to fund post - service educational efforts.

Decision

 Date: 20110825 Location: Washington D.C.        Representation:

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 did not identify any decisional issues for the NDRB’s consideration; however, 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 four P aragraph 6105 retention-counseling warnings and two non-judicial punishment s for violation s of the Uniform Code of Military Justice (UCMJ) , specifically : Article 89 (Disrespect to Chief Warrant Officer by use of inappropriate language) , Article 9 0 ( Disobedience of direct order from a Chief Warrant Officer) , Article 91 ( Insubordinate conduct toward a noncommissioned officer in the execution of his official duties ) , Article 117 ( P rovoking speech and gestures) , and Article 128 (Assault of a Chief Warrant Officer by threatening words and gestures). Additionally, the Applicant was subject to a Summary Court - Martial for violation of Article 112a (Wrongful use, possession, etc of a controlled substance - Marijuana, 23 ng/ml) .

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 15 August 200 3 . Based on the violation of Article 112 ( a ) , processing for administrative separation was mandatory. The NDRB reviewed the Applicant’s administrative separation package: when 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, but chose not to submit a written statement to the Separation Authority or to request an administrative board hearing. The Applicant provided no documentation for the NDRB’s consideration or to rebut the governmen t’s presumption of regularity.

(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 VA determines eligibility for post-service benefits, not the NDRB. The VA conducts its own determination of eligibility based on service records and input from an A pplicant upon their request. Additionally, 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 solely to a determination of the propriety and the equity of a discharge.

 (NDRB Board Issues) The NDRB conducted 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 was recommended for administrative separation based on a dual notification of Misconduct ( Pattern of Misconduct ) due to an established pattern of misconduct while in service and for Misconduct (Drug Abuse) due to his violation of the Marine Corps Policy on I llegal D rugs , as evidenced by the positive urine sample test results . 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 command did not opt to pursue a punitive discharge but instead chose the more lenient administrative discharge process . The Applicant did not contest the separation. 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 the conduct expected of members of the Naval service. 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 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, special court martial trial summary, 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, 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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