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USMC | DRB | 2011_Marine | MD1100586
Original file (MD1100586.rtf) Auto-classification: Denied
ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110105
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)       20040528 - 20050731     Active:   20050801 - 20081109 HON

Period of Service Under Review:
Date of Current Enlistment: 20081110     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20091207      H ighest Rank:
Length of Service : Y ea r M on ths 28 D a ys
Education Level:        AFQT: 50
MOS: 1142
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle SS , GCM , SSDR , ICM (W/ 1 CAMPAIGN STAR) , GWOTSM , NDSM , MM (2)

Periods of UA / CONF :

NJP: 2

- 20090910 :       Article 112 a (Wrongful use of controlled substance, marijuana, THC 49 ng/ml )
         Awarded: RIR FOP RESTR EPD Suspended:

- 20091120 :      Article 92 (Failure to obey order or regulation, drove vehicle while under the influence of alcohol)
         Article 111 (Drunken or reckless operation of a motor vehicle)
         Awarded : RIR FOP RESTR EPD Susp ended:

SCM: NONE        SPCM:    CC:     

Retention Warning Counseling : 1

- 20091123 :       For failure to obey order or regulation and drunken or reckless operation of a motor vehicle

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error s on the original DD Form 214:

          Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “ GOOD CONDUCT MEDAL, SEA SERVICE DEPLOYMENT RIBBON, IRAQ CAMPAIGN MEDAL (W/1 CAMPAIGN STAR), GLOBAL WAR ON TERRORISM SERVICE MEDAL, MERITORIOUS MAST(3), LETTER OF APPRECIATION ”
         “ UNDER OTHER THAN HONORAB LE 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:                  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

 Decisional issues: The Applicant contends that he was accused wrongfully, received an unfair hearing, and was prevented from presenting evidence to prove his innocence .

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. The 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 stan dards of equity and propriety.

The Applicant entered military service at age 1 8 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 27 May 2004 as a function of his enlistment waiver process. The Applicant successfully completed his four-year enlistment contract and, while deployed to Al-Taqaddum, Iraq, reenlisted with a bonus on a second four-year contract. The Applicant’s service record further documents that he is a combat veteran, having completed a combat deployment in the Al-Anbar Province of Iraq in support of Operation IRAQI FREEDOM (OIF). The Applicant completed one year of his current enlistment before being d ischarged from the service.

The Applicant’s record of service documents one paragraph 6105 retention-counseling warning and two nonjudicial punishments for violation s of the Uniform Code of Military Justice (UCMJ) during his current enlistment period. S pecifically, the Applicant violated Article 112(a) (Wrongful use, possession, etc of a controlled substance - marijuana ) , Article 111 (Drunken or reckless operation of a motor vehicle ) , and Article 92 (Failure to obey an order or regulation) . Based on the Applicant’s violation of Article 112(a), processing for administrative separation was mandatory. 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 - of the Command’s intent to process him for administrative separation due to Misconduct (Drug Abuse) in accordance with paragraph 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 and further 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, 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 contends that he was accused wrongfully, received an unfair hearing, and was prevented from presenting evidence to prove his innocence. The Applicant did not provide any documentation to support his contention of an impropriety or inequity to the NDRB .

(Propriety) The Applicant was recommended for administrative separation in accordance with paragraph 6210.5 of the MARCORSEPMAN - Misconduct (Drug Abuse). On 29 April 2009, the Applicant took part in a command - directed urinalysis following his return to duty after a 21 day post-deployment leave period. Naval Drug Lab screening results message dated 20090505 documented the presence of marijuana (49 ng/ml) in the Applicant’s system , thus establishing, by a preponderance of evidence, that the Applicant had violated Article 112(a) of the UCMJ. On 10 May 2009, the C ommand preferred charges for trial

by special court - martial against the Applicant for violation of Article 112 (a). On 08 May 2009, the Command offered to plea the case to a summary court - martial in exchange for his guilty plea and waiver of an administrative separation board; the Applicant declined to accept the agreement. On 03 September 2009, the Applicant signed a Pre-Trial Agreement (PTA) with the C onvening A uthority wherein he agreed to plead guilty to the charge as specified in exchange for withdrawal and dismissal of the charges at trial by court - martial. The Applicant further certified in writing that he understood the offer and agreement and had been fully advised of the meaning and affect of accepting nonjudicial punishment and its attendant effects and consequences. The Applicant specified that he was fully satisfied with his civilian and appointed military defense counsel. In accordance with the PTA , the charges at special court - martial were withdrawn, dismissed, and subsequently adjudicated at a Battalion - l evel nonjudicial punishment.

Processing for administrative separation for illegal drug use was mandatory by established (and acknowledged) service policy. The Applicant was afforded the opportunity to consult with a qualified legal defense counsel ( c ivilian and a ppointed m ilitary c ounsel) 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) Despite 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. Moreover, this 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 nonjudicial punishment 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 - i llegal drug use as a Noncommissioned Officer - coupled with continued misconduct as document ed by the violation of A rticle s 92 and 111 did represent specific acts or omissions that constitute 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 .


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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