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USMC | DRB | 2011_Marine | MD1100281
Original file (MD1100281.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20101115
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)       20050429 - 20051010     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20051011     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080912      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 01 D a y ( s )
Education Level:        AFQT: 27
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:

- 20070614 :       Article (Wrongful use, possession, etc of a controlled substance) , 3 specifications
         Specification 1: Written statement admitting previous use of anabolic steroids on or about 1000, 20070530
         Specification 2: Possession of anabolic steroids on or about 1100, 20070530
         Specification 3: Possession of drug paraphernalia in the form of hypodermic needles and syringes on or about 1100, 20070530.
         Article 121 (Steal government property, green star-cluster pyrotechnic, of a value of $29.13 on or about 20070528)
         Awarded : (to E-2) Susp ended: FOP

SCM:

- 20080621 :       Art icle (Failure to obey an order or regulation)
         Article 107 (False official statement)
         Article 128 (Assault)
          Sentence : RIR(to E-1) 40 days hard labor without confinement

SPCM:             CC:

Retention Warning Counseling :

- 20070612 :       For violation of A rticle 112a, wrongful use, possession, etc. of controlled substance, and A rticle 121, larceny and wrongful appropriation.


NDRB Documentary Review Conducted (date):        20100527
NDRB Documentary Review Docket Number:   MD09-02194
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.

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.       Applicant contends his discharge was inequitable and warrants consideration for upgrade.
2.       Applicant contends his post-service achievements warrant consideration for discharge upgrade.

Decision

Date: 20 1 1 1024            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 . T he 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 included 6105 retention counseling warning, one for o f the Uniform Code of Military Justice (UCMJ): Article 112a ( Wrongful use, possession, etc of a controlled substance, 3 specifications, steroids, on 30 May 2007) and Article 121 (Larceny, one green star-cluster pyrotechnic, valued at $29.13, o/o 28 May 2007), and one for of the UCMJ: Article 92 ( Failure to obey an order or regulation ) , Article 107 (False official statement ) , and Article 128 (Assault) . Based on the Article 112a offenses committed by the Applicant, his command administratively processed him for separation , which is mandatory per the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) . The Separation Authority decided to separate the Applicant from the Marine Corps with an Under Other Than Honorable Conditions discharge, but suspended the discharge for 12 months. However, on 21 Jun 2008 , the Applicant was found guilty at SCM for violation of UCMJ Articles 92, 107 , and 128 , which vacated his previous 12 - month suspended discharge. When notified of a dministrative separation processing using the procedure on 15 Aug 2008 , the Applicant waived his rights to consult with a qualified counsel and submit a written statement . The Applicant was separated from the Marine Corps on 12 Sep 2008 with an Under Other Than Honorable Conditions discharge for Misconduct (Drug Abuse).

: (Decisional) ( ) . The Applicant contends his discharge was inequitable and warrants consideration for upgrade. Despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain good order and discipline; violation of UCMJ Article 112a meets this standard. The Applicant signed the USMC Drug Policy on 28 Apr 2005. He was fully aware there is a zero tolerance policy for drug abuse , and he acknowledged the consequences. The evidence of record does not demonstrate the Applicant was not responsible for his conduct or he should not be held accountable for his actions. The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s failure to meet the requirements of conduct expected of all Marines and which subsequently resulted in his discharge. However, after considering all the available evidence, to include testimony given by the Applicant and a witness, the Board determined that mitigating circumstances were of such significance that relief was warranted. Relief granted.

: (Decisional) ( ) . The Applicant contends his post-service achievements warrant consideration for a discharge upgrade. The NDRB considers post-service conduct in order to determine if the misconduct committed during active duty was indicative of the Applicant ’ s character or an aberration. However, there is no law or regulation, that provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Although the Applicant’s efforts to improve his life are noteworthy, he failed to provide adequate documentation and evidence on his behalf to support a thorough post-service conduct review. Without any additional post-service documentary evidence, the Board found that this issue did not provide a basis for which relief could be granted. Relief denied.
Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, reco rd entries and the administrative separation process, the Board found the discharge was proper and equitable at the time of discharge. However, based on Applicant and witness testimony, and the evidence presented at the hearing, the awarded characterization of service shall and the narrative reason for separation shall remain . 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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