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USMC | DRB | 2011_Marine | MD1100583
Original file (MD1100583.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20101223 and 20110901
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)       19980423 - 19980428     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19980429     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19991026      H ighest Rank: PRIVATE FIRST CLASS
Length of Service : Y ea r ( s ) M on th ( s ) 28 D a y ( s )
Education Level:        AFQT: 67
MOS: 2531
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:
Awards and Decorations ( per DD 214):      None

NJP:

- 19990827 :       Article ( Absent without leave - Unauthorized Absence from 0630-1700, 19990820 )
         Awarded : Susp ended:

SCM:

- 19990629 :       Art icle ( Wrongful use, possession, etc., of a controlled substance ( m arijuana ) - wrongful use at unknown location on or about 19 February 1999 )
         Sentence : , , (19990629-19990723, 24 days)

SPCM:    CC:      Retention Warning Counseling :

Administrative Corrections to the Applicant’s DD 214

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

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:                  Oth er Documentation:    
                  Additional Statements :
          From Applicant:            From /To Representation:            From /To Congress m ember :        


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

Applicant’s Issues

 Decisional issues : The Applicant contend s that his misconduct was the result of self-medicating to treat the symptoms of an underlying mental health condition , which wa s identified while in service.

Decision

Date: 20 1 20126           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 NDRB 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. T he NDRB completed a thorough review of the circumstances that led to the discharge action, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety.

The Applicant entered military service at age 19 on a four-year enlistment contract with a waiver to enlistment and induction standards due to pre-service illegal drug use (marijuana). The Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs - in writing - on 26 February 1998 as a function of his enlistment waiver process. The Applicant’s record of service documents a nonjudicial punishment and a summary court - martial for violations of the Uniform Code of Military Justice (UCMJ) : Article 112(a) (Wrongful use, possession, etc of a controlled substance , marijuana) , resulting in a summary court - martial (June 99) , and Article 86 ( Absence without leave - unauthorized absence) , resulting in a nonjudicial punishment (Aug 99) . Based on the Applicant’s violation of Article 112(a), processing for administrative separation was mandatory by service policy as acknowledged by the Applicant in his understanding of the Marine Corps Policy Concerning Illegal Use of Drugs - signed on 26 February 1998 .

The NDRB reviewed the Applicant’s discharge package to ensure the Applicant was afforded all rights, as required by the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) . The Applicant was notified - in writing - on 09 August 1999 of the c ommand’s intent to process him for administrative separation due to Misconduct (Drug Abuse) in accordance with pa ragraph 6210.5 of the MARCORSEPMAN , with a recommendation for characterization of service as Under Other Than Honorable Conditions. The Applicant exercised his right to consult with qualified legal defense counsel but elected to waive his right to request a hearing before an administrative hearing board. The Applicant did not include any written statement in rebuttal of the action to the Separation Authority. After review by the Staff Judge Advocate, the Separation Authority determined that the evidence of record was sufficient in law and fact to support the proposed reason for discharge. As such, on 20 September 1999, the Separation Authority directed the Applicant’s discharge Under Other Than Honorable Conditions pursuant to paragraph 6210.5 of the MARCORSEPMAN - Misconduct (Drug Abuse); he further directed that the Applicant be assigned an RE-4B re-entry code (not recommended for reenlistment - in service drug abuse).

Decisional Issues (Propriety/Equity) RELIEF NOT WARRANTED . The Applicant seeks an upgrade in the characterization of his service at discharge, contending that his discharge was inequitable.

Propriety - D epartment of Defense (D oD ) disability regulations do not preclude a disciplinary separation while pending determination of medical issues . SECNAVINST 1850.4E stipulates that separations for misconduct take precedence over potential separations for other reasons ; f urthermore, whenever a member is being processed through the Physical Evaluation Board (PEB) for a medical disability, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The PEB case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record. Though the Applicant’s service record does document that he was treated for an adjustment disorder with depressed mood and anti-social traits, he was also determined to be in possession of illegal drugs and suspected of illegal drug use as a result of a local command investigation. As such, he was subject to

urinalysis drug testing , which resulted in a positive confirmation for wrongful use of marijuana (reference Naval Drug La b Screening and Confirmation message dated 031842Z Mar 99). Accordingly, t he Applicant was recommended for administrative separation in accordance with paragraph 6210.5 of the M ARCORSEPMAN - Misconduct (Drug Abuse). Naval Drug Lab screening results documented the presence of marijuana in the Applicant’s system, thus establishing, by a preponderance of evidence, that the Applicant had violated Article 112(a) of the UCMJ. The Applicant was afforded the opportunity to consult with a qualified legal defense counsel - which he did - and was notified properly of the proposed recommendation for separation; he acknowledged the separation process and elected his rights - in writing. Based on the documentation of record, the NDRB determined that the separation was proper and the narrative reason for separation was accurate. No relief based on propriety of the discharge action is warranted.

 Equity - The NDRB recognizes that serving in the military is challenging. Most service members, however, serve honorably and therefore earn their H onorable discharges. In fairness to those service members, commanders and separation authorities are tasked to ensure that undeserving Marines rece ive no higher characterization than is due. T he NDRB reviewed the Applicant’s in-service medical records and determined that the diagnose s of an a djustment d isorder with depression and anti-social traits was not a mitigating factor associated with the Applicant’s in-service misconduct . Moreover, d espite a service member’s prior record of service, certain serious offenses, though isolated, warrant separation from the Naval Service in order to maintain good order and discipline of the service. Violation of Article 112(a) is one such offense, requiring mandatory processing for administrative separation, regardless of grade, performance, service record, or time in service. T his action usually results in an unfavorable characterization of service at discharge or, at a maximum, a punitive discharge with the possibility of confinement, if adjudicated and awarded as part of a sentence by a special or general court-martial. The Applicant’s command did not opt to pursue a punitive discharge but instead chose to accept the more lenient summary - court martial and adm inistrative discharge process.

Characterization of service at discharge is the recognition of a Marine’s performance and conduct during a period of enlistment and is not necessarily dependent upon the narrative reason for separation. When the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under Honorable conditions. An Under Other Than Honorable Conditions discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from that conduct expected of members of the Naval Service. The NDRB determined the Applicant’s conduct - illegal drug use - coupled with continued poor performance did represent specific act s or omissions that constitute d a significant departure from the conduct expected of a Marine. By a vote of 5-0, the NDRB determined that the narrative reason for separation, and the resulting characterization of service at discharge, was proper, was equitable, was warranted, and was and still remains consistent with the characterization of discharge given others in similar circumstances. Accordingly, relief as requested is denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, and the discharge process, the NDRB determined that 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, specifically the paragraphs titled Additional Reviews and Post-Service Conduct .

Pertinent Regulation/Law

 A . Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 January 1997 until 31 August 2001.

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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