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USMC | DRB | 2010_Marine | MD1002247
Original file (MD1002247.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20100914
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)       20030429 - 20031109     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20031110     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20060218      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 09 D a y ( s )
Education Level:        AFQT: 42
MOS: 0341
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle ACM

NJP:      1

- 20051109 :      Article (UA 0600-1434, 20051102 , 8 hours and 34 minutes )
         Awarded: Suspended:

SCM: 1

- 20060125 :      Article (Drugs, 2 specifications )
         Specification 1: Wrongful Use of Codeine
         Specification 2: Wrongful Use of Morphine
          Sentence: (20060125-2006021 6 , 2 3 days)

SPCM:

CC:

Retention Warning Counseling:

- 20040405 :       For your diagnosed physical condition not being a disability, to wit: Shin splints, thoracic sprain and myofascitis and any resultant or aggravated condition that interferes with the effective performance of your duties.

Administrative Corrections to the Applicant’s DD 214

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

         “ (26) 20060125-20060216 ”

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:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

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 provided post-service mental health documentation indicating he has Post - Traumatic Stress Disorder (not combat related) , suggesting he wants to receive VA medical benefits to treat his condition.
2 .       Applicant contends he was not given a fair court-martial , because he did not have an attorney present, not allowed to have hi s own witnesses, and his chain of command was present at the court-martial proceedings.

Decision

 Date: 20 1 1 1005            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 Board presumes regularity in the conduct of g overnment al a ffairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service included one 6105 counseling warning and one non-judicial punishment for violation of the Un iform Code of Military Justice (UCMJ): Article 86 ( Unauthorized Absence, ) . His record of service also included one summary court-martial for violation of the UCMJ: Article 112a (Wrongful use of controlled substances, 2 specifications). The Applicant a pre-service drug waiver for using marijuana ten times prior to entering the Marine Corps, acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 23 A pril 2003 . Based on the Article 112a violation , processing for administ rative separation is mandatory. When notified of a dministrative separation processing , the Applicant his rights to consult with a qualified coun sel, submit a written statement , and request an administrative board .

: (Non - decisional) The Applicant provided post-service mental health documentation indicating he has PTSD (not combat related) , suggesting he wants to receive VA medical benefits to treat his condition. T he U.S. Department of Veterans Affairs determines eligibility for post-service benefits, not the Naval Discharge Review Board. There is no requirement, or law, that grants re-characterization solely on the issue of obtaining v eterans benefits , and this issue does not serve to provide a foundation upon which the Board can grant relief. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing a former service member’s eligibility to receive medical, educational, or any other v eterans benefits. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.

: (Decisional) ( ) . Applicant contends he was not given a fair court- martial , because he did not have an attorney present, not allowed to have hi s own witnesses, and his chain of command was present at the court-martial proceedings . According to the Manual for Courts-Martial (MCM) , the accused does not have the right to counsel during summary court-martial proceedings . T he MCM also states that the accused is allowed 7 days after sentenc ing to submit matters to the Convening Authority that might affect his decision to disapprove any findings of guilty or to approve the sentence. The NDRB found evidence in the Applicant’s service record indicating he was advised of th is right, but found no evidence that the Applicant exercised it . The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his claim. The Applicant provided no substantial credible evidence to rebut this presumption and support his claim . His statement alone does not overcome the government’s presumption of regularity in this case. Therefore, based on the presumption of regularity, the NDRB concluded that the summary-court martial proceeding w as conducted properly and fairly . The Board determined the Applicant’s discharge was proper and equitable. Relief denied.

S ummary: 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 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 for additional information.


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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