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USMC | DRB | 2011_Marine | MD1100641
Original file (MD1100641.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110111
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to: COMPLETION OF TERM OF SERVICE

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       20051220 - 20051228     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20051229     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20091228      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 00 D a y ( s )
Education Level:        AFQT: 88
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (Kuwait) (2) (w/1 bronze star) LOA CoC MM
Periods of CONF :

NJP:

- 20080711 :       Article (Wrongfully use marijuana)
         Awarded : Susp ended:

- 20081201 :       Article (Failure to obey order, wrongfully drinking while on Class A liberty and returning to the ship over one hour late)
         Awarded : Susp ended:

SCM:     SPCM:

CC:

- 20090626 :       Offense: Possession of drug equipment/paraphernalia, possession of marijuana, possession/concealed weapon.
         Sentence : Dismissed

- 20090821 :       Offense: Reckless handling of firearm
         Sentence : Dismissed








Retention Warning Counseling :

- 20060609 :       For violation of A rticle 92, willfully violating a school order by purchasing an Air Pistol and keeping it in the squad bay.

- 20071115 :       For violation of A rticle 86, UA from Company accountability formation, you remained UA throughout a Division run.

- 20071212 :       For being dropped from SLAC course due to lack of participation.

- 20080110 :       For being dropped from SLAC course due to lack of participation.

- 20080521 :       For violation of A rticle 121, L arceny and wrongful appropriation, caught shoplifting from the Marine Corps Exchange on 20080519.

- 20080715 :       For illegal drug involvement, marijuana usage identified through urinalysis confirmed by Navy Drug Lab JAXFL MSG.

- 20081112 :       For violation of A rticle 92, F ailure to obey order or regulation, while on Class A liberty restriction, I retu rned late and consumed alcohol.

- 20090612 :       For violation of A rticle 92, F ailure to obey order or regulation, specifically on 20090608 around 0200 hours you were involved in a vehicle accident while returning to Camp Lejuene NC. Failure to apply proper planning practices while on liberty and ensure proper operational risk management was exercised contributed to the vehicle accident you and a fellow Marine were involved in.

- 20091113 :       For violation of A rticle 86, F ailure to be at appointed place of duty, specifically on 20091110 at 0800 you were informed that there would be a 1700 formation on 20091112 following the V eteran’s D ay holiday. On 20091112 you were UA and w ere unable to be reached by your chain of command and your whereabout s were unknown.

Administrative Corrections to the Applicant’s DD 214
The NDRB did note administrative error(s) 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:                  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.        The Applicant contend s he was held past his separation date.
2.       The Applicant contends his rec ord of service outweighs his misconduct.
3.       The Applicant contends s tress in his life led to his misconduct.

Decision

Date: 2012 0223             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 discharg e if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of g overnment al affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant . The Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure the pertinent standards of equity and propriety were met. The Applicant’s record of service included 6105 counseling warnings and for o f the Uniform Code of Military Justice (UCMJ): Article ( , violating the liberty policy - wrongfully drinking while on Class A liberty and returning to the ship over an hour late , ) and Article ( Wrongful use, possession of a controlled substance, drugs - marijuana, confirmed by Navy Drug Lab JAXFL Message ). The Applicant a pre-service drug waiver for using marijuana thirteen times prior to entering the Marine Corps acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 19 December 2005 . Based on the offense s committed by the Applicant, command administratively processed for separation. On 17 November 2008 Command ing General, 2d Marine Division suspended the Applicant’s discharge for a period of twelve months. However, c harges were brought forth from the Maysville Police and Portsmouth Police Departments on 26 June 2009 and 21 August 2009 , respectively. O n 14 November 2009 , Commanding Officer, 2d Battalion, 6 th Marine Regiment, 2d Marine Division recommended to the Commanding General, 2d Marine Division that the Applicant’s suspension of Under Other Honorable Conditions discharge be vacated based on th os e charges from the Maysville and Portsmouth Police Department s and the 6105 counseling for Article 86 dated 13 November 2009 . This recommendation was approved and the Applicant was discharged. The NDRB did not have the pertinent documentation to determine whether or not the Applicant waived his rights to consult with a qualified counsel and submit a written statement. However, the Applicant has an HKK 1 separation code on his DD Form 214 , which indicates he waived his right to an administrative board.

: (Decisional) ( ) . The Applicant contends he was held on active duty beyond his EAOS of 28 December 200 9 , completing more than f our years of service. Per regulations, a member may not involuntarily be extended beyond his EAOS for the sole purpose of administrative separation processing. The NDRB conducted a thorough review of the Applicant ’ s service record and found no material evidence that shows the Applicant was discharged on a date after his EAOS . Although t he Applicant dated his signature as 30 December 2009 in Block 21 of his DD Form 214, the NDRB was not convinced that he was held past his EAOS. T he NDRB voted 4 to 1 t hat the characterization shall remain Under Other Than Honorable Conditions and the narrative reason shall remain Misconduct . R elief deni ed.
: (Decisional) ( ) . The Applicant provided a statement describing his performance and conduct during the period of enlistment under review. Despite a service member’s record of service, certain serious offenses warrant separation from the Marine Corps to maintain proper order and discipline. In July 200 8 , the Applicant received NJP for violating Article 11 2 a of the UCMJ. In December 2008, the Applicant received NJP a second time, for violating Article 92 of the UCMJ. He also received retention warnings for violating Articles 86 (x2) , 92 (x3) , and 1 21 , and for being dropped from the Squad Leader Advanced Course (x2). Even though the Applicant had multiple violations of the UCMJ, his 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 of discharge given others in similar circumstances. Relief denied.

: (Decisional) ( ) . The Applicant contends he lacked a viable outlet in which to manage his anger . As a result, he used marijuana as one of his means of coping with the stress of returning from Iraq , which eventually led to his discharge. The NDRB recognizes that serving in the U.S. Marine Corps is challenging . It must be noted that most members of the Marine Corps serve honorably and, therefore, earn their H onorable discharges. In fairness to those members of the Marine Corps , commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. Additionally, there are multiple legal resources available to cope with anger and stress, such as chaplains, medical or mental health professionals, Family Advocacy, Navy Relief Society, or even the Red Cross. Turning to illegal drug use is not a viable option. The NDRB found that the Applicant ’ s service was equitably characterized. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, and d ischarge p rocess, 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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