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USMC | DRB | 2011_Marine | MD1100493
Original file (MD1100493.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20101216
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)       20070220 - 20070225     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20070226     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20091023      H ighest Rank:
Length of Service : Y ea rs M on ths 01 D a y
Education Level:        AFQT: 40
MOS: 0811
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle EX ICM (2) SSDR GWOTSM NDSM

Period s of UA / CONF : UA: 20090606 - 20090609, 4 days
                  CONF: 20090724 - 20090815, 23 days

NJP: 3

- 20080729:      Article 92 ( Failure to obey order or regulation, inhaled or huffed compressed air for personal gain )
         Awarded: FOP RESTR EPD Suspended: NONE
- 20090331:      Article 86 (Absence without leave, failure to go to appointed place of duty on 20090216)
         Article 92 (Failure to obey order or regulation, 2 specifications )
         Specification 1: On 20090213 consumed of alcohol under the legal drinking age and operated a motor vehicle which resulted in an automobile accident on 20090214
         Specification 2: Failed to wear his seatbelt while operating a motor vehicle resulting in personal injuries
         Article 107 (False official statement, made a false official statement to two staff sergeants regarding his requirement to report to the Battalion OOD on 20090216)
         Awarded: RIR FOP RESTR EPD Suspended: NONE

- 20090 513 :      Article 86 (Absence without leave, failed to go to appointed place of duty on 20090505)
         Article 134 (General article , 2 specifications )
         Specification 1: Failed to report to Battalion OOD for restriction from 20090403 - 20090411
         Specification 2: Having an unauthorized visitor in barracks on 20090417
          Awarded: RIR FOP RESTR EPD Suspended:

SCM: 1

- 200907 23:      Article 112a (Wrongful use of controlled substance, marijuana , 180 ng/ml )
         Sentence:


SPCM:    CC:

Retention Warning Counseling: 6

- 20070713:      For failure to report to the DNCO for duty as the A wing Firewatch MarBtry in Ft Sill, OK

- 20071108:      For disobeying a lawful order given by the Battery First Sergeant

 - 20080729 :      For failure to obey an order or regulation

- 20090401 :       For underage consumption, failure to be at appointed place of duty, and a continues pattern of misconduct
- 20090414:      For civilian conviction of DUI in Jacksonville, NC

 - 20090722:      For unauthorized absence on 20090519 and from 20090604 to 20090610

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:        

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 wants to receive v eterans medical benefits so he can treat the injuries he sustained while in service, to include what he believes are symptoms of P ost-Traumatic Stress Disorder (P TSD ) .
2.       Applicant states he would like to finish college and move on with his life.
3 .       Applicant contends his record of service warrants consideration for an upgrade.
 4.       Applicant contends his post-service conduct warrants consideration for an upgrade.
Decision

 Date: 20 1 1 1019            Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall .
Discussion

In accordance with U.S. Code, Title X, Section 1553 (d)(1), the Naval Discharge Review Board included a member who is a physician, clinical psychologist, or psychiatrist. In accordance with section 1553 (d)(2), the service secretary expedited a final decision and accorded the case sufficient priority to achieve an expedited resolution.
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. T he Board c omplete d a thorough review of the circumstances that led to the Applicant’s discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included six 6105 counseling warnings and three non-judicial punishments (NJP s ) for violations of the Uniform Code of Military Justice (UCMJ): Article ( Absence without leave , 2 specifications ), Article 92 ( Failure to obey order or regulation, 3 specifications), Article 107 (False official statement, 1 specification), Article 134 (General article, f ailure to report for restriction muster , 1 specification ), and Article 134 (General article, h aving unauthorized visitor in the barracks, 1 specification). His record of service also included one summary court-martial for violation of the UCMJ: Article 112a (Wrongful use of a controlled substance, 1 specification). The Applicant had a pre-service drug waiver for using marijuana nine times prior to entering the Marine Corps, acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 17 February 2002 . Based on the Article 112a violation , processing for administ rative separation is mandatory . When notified of a dministrative separation processing , the Applicant right to consult with a qualified coun sel but waived his rights to submit a written statement and request an administrative board .

: (Non - decisional) The Applicant wants to receive v eterans medical benefits so he can treat the injuries he sustained while in service, to include what he believes are symptoms of PTSD. He would also like to finish college , suggesting he wants the GI Bill. The Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. There is no requirement, or law, that grants re-characterization solely on the issue of obtaining v eterans benefits. The NDRB has no authority to upgrade a discharge for the purpose of enhancing a former service member’s eligibility to receive VA medical or education benefits. Regulations limit the Board’s review to a determination of the propriet y and equity of the discharge.

: (Decisional) ( ) . The Applicant asserts he served in Iraq and received various awards and recognitions , suggesting his record of service warrants consideration for an upgrade. Despite a service member’s prior record of service, certain serious offenses 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 usually result s 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. T he Applicant violat ed Article 112a of the UCMJ. H is command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. The NDRB found the characterization of the Applicant ’ s discharge was equitable and consistent with the characterization given others in similar circumstances. Relief denied.

 Issue 4: (Decisional) ( ) . The Applicant asserts he is currently employed , suggesting his post-service conduct warrants consideration for upgrading his discharge. 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 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. For example, he could have provided evidence of the following: 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 financial institutions (including banks and credit card companies), attendance at or completion of higher education (official transcripts), and documentation of a drug-free lifestyle. 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. 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.


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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