Upgrade.Vet

USMC | DRB | 2011_Marine | MD1100320

Original file (MD1100320.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20101122

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to: CONVENIENCE OF THE GOVERNMENT

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       20021011 - 20021118     Active: 20021119 - 20061006 HON

Period of Service Under Review:
Date of Current Enlistment: 20061007     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20100119      H ighest Rank:
Length of Service : Y ea rs M on ths 13 D a ys
Education Level:        AFQT: 42
MOS: 3531
Proficiency/Conduct M arks (# of occasions): /          Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle Pistol NMCAM GCM ICM (2) KDSM SSDR (5) GWOTSM NDSM

Periods of UA / CONF :

NJP:     SCM:     SPCM:    CC:

Retention Warning Counseling:

- 20091023 :      For civilian conviction of DUI and positive urinalysis results

Administrative Corrections to the Applicant’s DD 214

The NDRB note d an administrative error 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:                  Other Documentation:
                  Additional Statements:
         From Applicant:          From/To Representation:          From/To Congress member:

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1.       Applicant wants to receive Department of Veterans Affairs (VA) medical benefits .
2 .       The Applicant states he never took any drugs other than those prescribe d by a doctor.
3.       The Applicant contends that since his discharge he h as enrolled in college.
4.       The Applicant suggests his record of service, as evidenced by the in-service character reference letters and fitness reports, wa rrants consideration for upgrading his discharge to Honorable.

Decision

Date: 20 1 20103         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 61 05 counseling warning . It did not include any non-judicial punishments and trials by court-martial for violations o f the Uniform Code of Military Justice (UCMJ) . The Applicant did not require a pre-service drug waiver to enter the Marine Corps . According to documentation found in the Applicant’s service record, he tested positive for methamphetamine and MDMA (Ecstas y) . Based on the Article 112a violation , processing for administ rative separation is mandatory. When notified of administrative separation processing , the Applicant waived his right to submit a written statement but exercised his rights to consult with a qualified counsel and request an administrative board. The A dministrative S eparation B oard (ASB) found that the preponderance of the evidence supported the allegations and recommended separation with an Under Other Than Honorable Conditions characterization of service.

: (Non - decisional) The Applicant wants to receive VA medical benefits. The 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 v eterans medical benefits. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.

: (Decisional) ( ) . The Applicant contends he was discharged unfairly and without justification , because he never took any drugs other than those prescribe d by a doctor. 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’s medical record does reflect th at he had been prescribed medications such as V icodin, Percocet, O xycodone, H ydromorphone, and D ilaudid at various times during his service. The Drug Testing Program Testing Register found in the Applicant’s service record is annotated with the comment “see medical record.” Therefore, the Board presumes regularity in that his command reviewed and properly excluded the prescription medications from the drug test results and still determined he had wrongfully used the controlled substance s methamphetamine and MDMA (Ecstas y ) . A subsequent ASB found that the preponderance of the evidence supported the allegation that the Applicant had wrongfully used controlled substances. Neither the documentation provided by the Applicant nor his statement overcomes the government’s presumption of regularity in this case. Therefore, the NDRB concluded the Applicant’s discharge was proper and equitable. Relief denied.

: (Decisional) ( ) . The Applicant suggests his post-service achievements as evidenced by his college attendance warrant s consideration for an upgrade. The NDRB is authorized to consider post-service factors in the re-characterization of a discharge. However, there is no law, or regulation, that provides that 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 exist during the period of enlistment in question. The Applicant did not submit any post-service documentation along with the DD Form 293 for the Board to evaluate his post-service character and conduct. His efforts needed to have been more encompassing and supported by documentation. He could have provided documentation as specified in the Post-Service Conduct paragraph in the Addendum , however, c ompletion 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. Relief denied.

Issue 4: (Decisional) ( ) . The Applicant suggests his record of service , as evidenced by the in-service character reference letters and fitness reports, wa rrants consideration for upgrading his discharge to H onorable. Despite a service member’s prior record of service, certain serious offen ses , even though isolated, warrant separation from the Marine Corps to maintain proper order and discipline. Violation of Article 112a of the UCMJ is such an offense. Wrongful use or possession of a controlled substance can result in an unfavorable characterization of service, or at a maximum, a punitive discharge , and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The Applicant wrongfully used methamphetamine and MDMA . However, his command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. The NDRB found the charact erization of the Applicant’ s discharge was equitable and consistent with the characterization given others in similar circumstances. 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 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.

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 .

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 | 2011_Marine | MD1100320

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