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USMC | DRB | 2011_Marine | MD1100591

Original file (MD1100591.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20101222

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)       20061221 - 20070730     Active:

Period of Service Under Review:
Date of Current Enlistment: 20070731     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20100514      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 15 D a y ( s )
Education Level:        AFQT: 36
MOS: 1141
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle , ( w/2 campaign stars ), , ,

Periods of U nauthorized Absence (U A ): none Periods of Confinement: 20091204 - 20091227 (24 days)

NJP:     SPCM:    CC:               Retention Warning Counseling : None

SCM:

- 20091204 :       Art icle (Wrongful use , possession, etc., of a controlled substance - Methylenedioxyamphetamine (MDMA) , 950 mg/ng)
         Sentence : , , (20091204 - 20091227, 24 days)

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.       Nondecisional issues: The Applicant seeks an upgrade in the characterization of his service at discharge in order to facilitate employment opportunities.

2.       Decisional issues : The Applicant did not identify any decisional issues related to the equity or propriety of the discharge action for the NDRB’s consideration.

Decision

Date: 20 1 2 0126          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 Applicant did not identify any decisional issue s for the NDRB’s consideration , however, 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 standards of equity and propriety.

The Applicant entered military service at age 1 7 (with parental consent) on a four - year enlistment contract on an Open Contract agreement . The Applicant’s enlistment record reflects entry into military service with out any requirement for waivers to enlistment and induction standards . The Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs - in writing - on 20 December 2006 as a function of his enlistment process. The Applicant is a combat veteran, having completed a deployment with a combat engineer battalion to the Al-Anbar Province of Iraq while conducting combat operations in Ar-Ramadi in support of Operation IRAQI FREEDOM (OIF). The Applicant completed two years and nine months of his four-year enlistment obligation before being discharged for illegal drug use .

The Applicant’s record of service documents one summary court - martial for violation of the Uniform Code of Military Justice (UCMJ): specifically, Article 112(a) (Wrongful use, possession, etc of a controlled substance - MDMA (Ecstasy) ). 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 M ARCORSEPMAN with a recommendation for characterization of service as Under Other Than Honorable Conditions . The Applicant waived 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. A fter 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-4 B re-entry code (not recommended for reenlistment - in service drug abuse) .

Non-decisional Issue - The Applicant seeks a n upgrade in the characterization of his service at discharge in order to facilitate employment opportunities . T here is no requirement, or law, that grants re-characterization solely on the issue of facilitating employment opportunities , access to v eterans benefits programs , or reenlistment . Regulations limit the NDRB’s review solely to a determination of the equity and propriety of a discharge action when considering a change to a n administrative discharge . As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.

Decisional Issues (Propriety/Equity) - RELIEF NOT WARRANTED . The Applicant did not identify any decisional issues related to the equity or propriety of the discharge action for the NDRB’s consideration. However, the NDRB conducted a detailed review of the Applicant’s service record and the discharge action to ensure that the action was both prope r and equitable.

Propriety - The Applicant was recommended for administrative separation in accordance with paragraph 6210.5 of the MARCORSEPMAN - Misconduct (Drug Abuse ) . The Applicant was afforded the opportunity to consult with a qualified legal defense counsel and was notified properly of the proposed recommendation for separation; he acknowledged the separation process and elected his rights - in writing. Naval Drug Lab screening results documented the presence of MDMA ( Ecstasy ) in the Applicant’s system and established , by a preponderance of evidence , that the Applicant had violated Article 112(a) of the UCMJ . Processing for administrative separation for illegal drug use was mandatory by established (and acknowledged) service policy . 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 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. 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, which forms the primary basis for determining the character of service, reflected acts or omission that constituted a significant departure from that conduct expected of a service member. 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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USMC | DRB | 2011_Marine | MD1100591

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