Search Decisions

Decision Text

USMC | DRB | 2010_Marine | MD1002279
Original file (MD1002279.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20100428
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

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

Summary of Service

Prior Service:
Inactive:         NONE              Active:  

Period of Service Under Review:
Date of Current Enlistment: 19920125     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19950522      H ighest Rank:
Length of Service:
         Inactive:        Y ea r ( s ) M on th ( s ) 1 6 D a y ( s )
         Active:  Y ea r ( s ) M on th ( s ) 11 D a y ( s )
 Education Level:        AFQT: 45
MOS: 6071
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations :

Periods of UA / CONF :

NJP:     SCM:              SPCM:    CC:      Retention Warning Counseling :

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 P1900.16D), effective
27 June 1989 until 17 August 1995.

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.       Applicant contends his discharge was inequitable as the miscond uct for which he was separated wa s partially mitigated by circumstances in his personal life not within his control.
2.       Applicant contends his post-service achievements warrant consideration for a discharge upgrade.

Decision

 Date: 20 1 1 1207            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 identif ied two decisional issues for the Board ’s consideration . The Board complete d a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service did reveal that on or about 17 Apr 2004, the Applicant tested positive for cocaine on a unit urinalysis as evidenced by NAVDRUGLAB message 020803Z May 94, which is a violation of the Uniform Code of Military Justice (UCMJ) Article 112a (Wrongful use, possession, etc of a controlled substance). The Applicant did not have a pre-service drug waiver for any type of illegal drug use prior to entering the Marine Corps . During his enlistment accession processing, he acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 1 October 91 . Based on the Article 112a violation , processing for administ rative separation was mandatory per the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) . The Applicant’s reserve unit attempted to notify him of a dministrative separation processing in person (5 Nov 94) and via mail (4 Dec 94) using the procedure . However, both attempts were unsuccessful. The Board was unable to determine whether the Applicant exercised or his rights to consult with a qualified coun sel, submit a written statement , and request an administrative separation board . The separation code of HKK1 listed on the Separation Authority decision letter indicates the Applicant waived his right to the administrative separation board proce e d ing .

: (Decisional) ( ) . The Applicant contends his discharge was inequitable as the misconduct for which he was separated was partially mitigated by circumstances in his personal life not within his control. At the discharge review hearing, the Applicant provided the Board with a detailed account of the series of events that transpired le a d ing up to his misconduct. While conducting a detailed review of the Applicant’s pre-service and post-service conduct and accomplishments, the Board deliberated extensively , and determine d that the misconduct for which he was separated was an aberration and not reflective of his character as established by his in-service performance and post-service accomplishments. T he Applicant’s Proficiency and Conduct marks show a pattern of consistent ly strong performance and conduct as evidenced by his 4.5/4.4 average prior to his misconduct. Per the MARCORSEPMAN , a Marine may be awarded a General (Under Honorable Conditions) discharge if the member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance outweigh positive aspects of the member’s military record. The Applicant’s misconduct dictated that he receive an Under Other Than Honorable Conditions discharge at the time of his separation. After examining all the available evidence, to include the significant post-service documentation and testimony provided by the Applicant, the Board determined that partial relief was warranted. Full relief to Honorable was not granted due to the misconduct of record.

: (Decisional) ( ) . The Applicant contends his post-service achievements warrant consideration for a discharge upgrade. The Applicant contends his post-service conduct warrants consideration for an upgrade in characterization to Honorable, and he provided verifiable documentation to support his contention. After a careful review of the Applicant ’ s post-service documentation and official service record, and taking into consideration his testimony and the facts and circumstances unique to this case, the NDRB determined partial relief is warranted based on equitable grounds. The Board voted unanimously to upgrade the discharge characterization to General (Under Honorable Conditions) but not change the narrative reason for separation. Full relief to Honorable was not granted due to the misconduct of record.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries , post-service documentation, and the testimony provided by the Applicant, the Board found the discharge was proper and equitable at the time of discharge. However, based on the significant testimony and documentary evidence provided by the Applicant, the Board determined that the Applicant’s awarded characterization of service shall
GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain .


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

Similar Decisions

  • USMC | DRB | 2014_Marine | MD1400377

    Original file (MD1400377.rtf) Auto-classification: Denied

    The Applicant’s record of service did not document if she hada pre-service drug waiver prior to entering the Marine Corpsor acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs.When notified of administrative separation processing using the procedure for Misconduct (Drug Abuse) and Misconduct (Serious Offense), the Applicant rights to consult with a qualified counsel, submit a written statement, and requestan administrative board.The Applicant’s...

  • NAVY | DRB | 2009_Navy | ND0901803

    Original file (ND0901803.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. After a careful review of the Applicant's post service documentation, in addition to his official service record and supporting documentation, the Board found that the Applicant’s post-service conduct was sufficiently creditable to warrant an upgrade to his characterization of service to General (Under Honorable Conditions). ” Additional Reviews : After a document review has...

  • USMC | DRB | 2011_Marine | MD1101329

    Original file (MD1101329.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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/ToCongress member: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD...

  • USMC | DRB | 2011_Marine | MD1101078

    Original file (MD1101078.rtf) Auto-classification: Denied

    After a thorough review of the records, supporting documents, facts, testimony, and circumstances unique to this case, the NDRB determined that the standard of preponderance of evidence was not met at the ASB and that relief was warranted. Relief granted.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, testimony, and discharge process, the Board found the discharge was improper.Based on facts and circumstances unique...

  • USMC | DRB | 2012_Marine | MD1200407

    Original file (MD1200407.rtf) Auto-classification: Denied

    Marine Corps regulations direct that members notified of intended recommendation for discharge while in an entrylevel status receive an Uncharacterized character of service except in circumstances where service has been so meritorious that an Honorable is clearly warranted. Relief granted.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, the Applicant’s testimony, and discharge process, the Board found Therefore, the...

  • USMC | DRB | 2011_Marine | MD1100643

    Original file (MD1100643.rtf) Auto-classification: Denied

    By a vote of the Narrative Reason shall FAILURE TO PARTICIPATE.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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.The...

  • NAVY | DRB | 2009_Navy | ND0900838

    Original file (ND0900838.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated to Military Service: DD 214:Service/Medical Record: Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Substance Abuse: Criminal Records: Family/Personal Status: Community Service: References: Additional Statements: From Applicant: From/To Representation:From/ToCongress member:Other Documentation:Applicant Testified: Applicant Available for Questions: Witnesses: Observers: DEPARTMENT OF...

  • USMC | DRB | 2010_Marine | MD1002235

    Original file (MD1002235.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant requests clemency based on his in-service accomplishments. : (Decisional)() .The Applicant requests clemency based on his in-service accomplishments. ” 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...

  • USMC | DRB | 2009_Marine | MD0902129

    Original file (MD0902129.rtf) Auto-classification: Denied

    During this time, the Applicant received numerous counseling warnings to include: writing a bad check due to insufficient funds in his checking account; unsatisfactory appearance at company commander’s personnel inspection; a domestic violence incident with his wife in base housing; Level III alcohol rehabilitation failure; and disorderly conduct with attempt to damage government property and provoking speech/gestures toward military police during his detainment at the installation main...

  • USMC | DRB | 2012_Marine | MD1201499

    Original file (MD1201499.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD...