Upgrade.Vet

USMC | DRB | 2010_Marine | MD1002071

Original file (MD1002071.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20100818

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)       20011011 - 20011209     Active:

Period of Service Under Review:
Date of Current Enlistment: 20011210     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20040730      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 21 D a y ( s )
Education Level:        AFQT: 59
MOS: 0151
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:

- 20040108 :      Article ( Wrongful use, possession, etc of a controlled substance – marijuana ( 58 ng/ml ) )
         Awarded: Suspended:

- 20040618 :      Article ( Wrongful use, possession, etc of a controlled substance – marijuana ( 42 ng/ml ) )
         Awarded : Susp ended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20040108 :       For my illegal drug involvement, marijuana usage identified through urinalysis confirmed by NAVDRUGLAB message 241043Z December 2003. I am advised that processing for administrative separation for misconduct is mandatory per MCO P1900.16E.

- 20040618 :       For my illegal drug involvement, marijuana usage identified through urinalysis confirmed by NAVDRUGLAB message 102216Z June 2004. I am advised that processing for administrative separation for misconduct is mandatory per MCO P1900.16E.

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. 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

Decisional issue : The Applicant contends that he used illegal drugs to avoid a second unit deployment to Kuwait in support of Operation Iraqi Freedom .

Decision

Date: 20 1 1 0830 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 identif ied one decisional issue to the NDRB; additionally, the NDRB completed a thorough review of the circumstances that led to the discharge, and the discharge process, to ensure his discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included two paragraph 6105 retention-counseling warning s and two nonjudicial punishments for violations of the Uniform Code of Military Justice (UCMJ) , specifically, Article (Wrongful use, possession, etc of a controlled substance, 2 specification s : Marijuana 58 ng/ml and Marijuana 42 ng/ml as reported by Naval Drug L ab testing ) . The Applicants service record contains no other punitive or non-punitive punishments of record. The Applicant entered the service with a pre-service drug waiver for the use of marijuana (100 uses) prior to entering the Marine Corps; he acknowledged - in writing - his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs as a function of his waiver to enlistment on 04 October 2001 . Based on the violation of Article 112 ( a ) of the UCMJ, processing for administrative separation was mandatory. The Applicant was processed for separation in accordance with paragraph 6210.5 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) for Misconduct (Drug Abuse) - twice. After the first NJP, the Applicant was processed for separation. He elected to consult with counsel and requested an administrative discharge hearing board be convened. A board was convened and heard the Applicant’s argument for retention; the board found the preponderance of the evidence supported the finding of misconduct as specified, that retention was not warranted, and that the Applicant’s characterization of service at discharge should be General (Under Honorable Conditions). The Separation Authority concurred with the board’s findings and recommendations and approved the discharge. However, three days prior to the Separation Authority taking action on the discharge recommendation, the Applicant failed a second urinalysis resulting from his wrongful use of marijuana. When notified, the Separation Authority rescinded his approval of the original discharge action and returned it to the command, directing they take action of the subsequent violation of the UCMJ. The Command opted this time to refer the Applicant to trial by Special Court Martial. The Applicant request ed a pre-trial agreement wherein he agreed to plead guilty at NJP, waived his right to an administrative board and accept the command’s recommendation for separation Under Other Than Honorable Conditions for Misconduct (Drug Abuse). The Applicant’s separation package was approved and he was subsequently discharged on 20 July 2007. The Applicant’s DD-214 had already be en completed reflecting a General (Under Honorable Conditions) characterization when the discharge action was rescinded; as such, he was issued a DD-215 ( C hange or correction to DD-214) reflecting his new characterization of service (Under Other Than Honorable Conditions) and new date of discharge.

(Decisional Issue ) (Equity/Propriety) . The Applicant contends that he used illegal drugs to avoid a second unit deployment to Kuwait in support of Operation Iraqi Freedom. The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service. Violation of Article 112 ( a ) requires mandatory processing for separation. The Applicant acknowledged his full understanding of the service policy concerning drug use, in writing. Violation of Article 112(a) is a serious offense, punishable by punitive discharge and confinement if adjudicated by a special or general court-martial. The command did not pursue a punitive discharge, but instead, opted for the more len ient administrative discharge.

Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Marine Corps . There is no evidence of impropriety, inequity, or procedural irregularities in the Applicant ’ s discharge. The Applicant ’ s misconduct was clearly documented. He acknowledged and waived his rights to legal counsel and an administrative hearing on his second processing for separation after entering into a written pre-tri a l agreement . The Applicant was afforded the appropriate due process during the processing of his case. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflected a deliberate and willful failure to meet the requirements of his contract with the U.S. Marine Corps and fell far short of that required for an upgrade of his characterization of service. The Applicant ’ s characterization of service - U nder O t her T han H onorable C onditions - was proper , was equitable , and was consistent with other discharges for the same or like offense s . 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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USMC | DRB | 2010_Marine | MD1002071

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