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USMC | DRB | 2011_Marine | MD1100712
Original file (MD1100712.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110124
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:         NONE              Active:   R 200502 28 - 20060512 HON

Period of Service Under Review:
 Date of Current Enlistment: 20061211     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070531      H ighest Rank:
Length of Service : Y ea rs M on ths 21 D a ys
Education Level:        AFQT: 90
MOS: NONE
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle EX NDSM

Periods of UA / CONF :

NJP: 1

- 20070330 :      Article 112a (Wrongful use of controlled substance, cocaine, 103 ng/ml, NAVDRUGLAB msg 282039Z MAR 07)
         Awarded: FOP RESTR EPD Suspended:

SCM: NONE        SPCM:    CC:

Retention Warning Counseling: 1

- 20070330 :      For wrongful use of controlled substance, cocaine

Administrative Corrections to the Applicant’s DD 214

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

          Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “ RIFLE EXPERT BADGE, NATIONAL DEFENSE SERVICE MEDAL, ARMY GOOD CONDUCT MEDAL, GLOBAL WAR ON TERRORISM SERVICE MEDAL, ARMY SERVICE RIBBON, OVERSEAS SERVICE RIBBON, ARMED FORCES RESERVE MEDAL W/M DEVICE, IRAQ CAMPAIGN MEDAL ”
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.       The Applicant contends he was deprived due process, through coercion, to waive his right to an ad ministrative separation board.
2.       The Applicant contends his record of service and character warrants a higher characterization of service.
3.       The Applicant contends his quality of service and capability to serve as evidence d by his hono r able service in the Arm y R eserve, during which he served in Iraq, character references pertaining to his service, selection as squad leader upon graduation from basic training, and receiving the highes t physical fitness test (PFT) score in his platoon warrants upgrading his discharge.
 4.       The Applicant believes his post- service conduct and character warrants consideration for upgrading his discharge to Honorable.

Decision

 Date: 20 1 2 0503            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 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. The Applicant’s record of service included 6105 counseling warning and non-judicial punishment for o f the Uniform Code of Military Justice (UCMJ): Article ( Wrongful use, possession, etc. of a controlled substance , ) . The Applicant’s statement acknowledging his understanding of the Marine Corps Policy Concerning Illegal Use of Drugs was not found in his service record. The NDRB found documentation indicating that his enlistment was fraudulent , because he falsified his Marine Corps enlistment application when he failed to disclose his cocaine use after receiving a conditional release from the Army Reserve and did not reveal it until the M oment of T ruth at the Marine Corps Recruit Depot. However, he was granted a waiver and allowed a second chance. After he completed recruit training, he went h om e and used cocaine again. Based on the Article 112a violation , processing for administ rative separation is mandatory. When notified of a dministrative separation processing , the Applicant right to submit a written statement , but waived his rights to consult with a qualified coun sel and request an administrative board .

: (Decisional) ( ) . The Applicant contends he was deprived due process, through coercion, to waive his right to an administrative separation board . He contends he was the subject of undue pressure by his senior Staff Noncommissioned Officer (S NCO ) to waive his right to consult with an attorney before deciding whether to elect his right to an administrative separation board. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his claim. There is no evidence in the record, nor has the Applicant produced any substantial and credible evidence, to support his claim that he was coerced into waiving his rights to consult with counsel and request an administrative board. His sworn statement alone does not prove his claim and does not overcome the government’s presumption of regularity in this case. The Applicant did not consult with counsel or request a hearing before an Administrative Separation Board but did submit a written statement . If the Applicant felt he was coerced into waiving his rights , it was his obligation to report misconduct of his SNCO to higher authority through mechanisms such as the request mast process or to the Command Inspector General at the time the incident occurred . The Applicant submitted no evidence to support his contention . T herefore, the NDRB relied upon the presumption of regularity in the conduct of government affairs. Relief denied.





: (Decisional) ( ) . The Applicant contends his record of service and character warrants a higher characterization of service. Despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the to maintain proper order and discipline. Violation of Article 112a is one such offense requiring mandatory processing for administrative separation regardless of grade, performance, combat service, service in other branches, or time in service. This usually results in an unfavorable characterization of discharge 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. The Applicant was found guilty of violation of Article 112a. However, his command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. Relief denied.

 : (Decisional) ( ) . The Applicant contends his quality of service and capability to serve as evidence d by his hono r able service in the Army Reserve, during which he served in Iraq, character references pertaining to his service, selection as squad leader upon graduation from basic training, and receiving the highes t PFT score in his platoon warrants upgrading his discharge. The Applicant served for 15 months in the Army Reserve and was appropriately recognized with an Honorable discharge. However, while in the Marine Corps, the Applicant used cocaine and further, had neglected to inform the Marine Corps of previous drug use during the enlistment process. D espite a service member’s quality of service and capability to serve as demonstrated by his achievements in a prior or current enlistment , certain serious offenses warrant separation from the to maintain proper order and discipline. Violation of Article 112a is one such offense requiring mandatory processing for administrative separation regardless of grade, performance, capability, potential, or time in service. Relief denied.
Issue 4 : (Decisional) ( ) . T he Applicant believes his p ost - service conduct and character warrants consideration for upgrading his discharge to Honorable. The NDRB considers 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. The Applicant provided 13 character reference statements. C ompletion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration. To warrant an upgrade, the Applicant’s post-service efforts need to be more encompassing. The Board determined that the documentation submitted by the Applicant does not demonstrate if his in-service misconduct was an aberration. The characterization of service received was appropriate considering it was based on a blatant violation of Marine Corps p olicy c oncerning the i llegal u se of d rugs , particularly after the Applicant had been given a second chance after failing to reveal prior illegal drug use during enlistment into the Marine Corps . 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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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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