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USMC | DRB | 2011_Marine | MD1100853

Original file (MD1100853.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20110131

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)       19980626 - 19980726     Active:          19870714 - 19890718 HON
                                                                        USMC      19960727 - 19980726 HON
                                                                        USMC     19980727 - 2002031 6 HON
                                                                        USMC     20020317 - 20060308 HON
Period of Service Under Review:
Date of Current Enlistment: 20060309     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070615      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 0 7 D a y ( s )
Education Level:        AFQT: 96
MOS: 0369 hgr
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (6) Pistol (2) (4) NAVY ‘E’ C o C CoA

Periods of UA / CONF :

NJP:

SCM:

- 20070227 :       Art icle (Wrongful use of marijuana, 48 ng/ml, NAVDRUGLAB 20061026) 20061018
         Sentence : RIR (to E-5)

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:
         “ YEAR(S) 01; MONTH(S) 03; DAY(S) 07 ”
         Block 12d, Total Prior Active Service, should read: “ YEAR(S) 11; MONTH(S) 07; DAY(S) 13 ”
         Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “ Rifle EX (6) Pistol EX GOOD CONDUCT MEDAL(2) NAVY AND MARINE CORPS ACHIEVEMENT MEDAL SEA SERVICE DEPLOYMENT RIBBON (4) GLOBAL WAR ON TERRORISM SERVICE MEDAL NATIONAL DEFENSE SERVICE MEDAL NAVY E MERITORIOUS UNIT COMMENDATION CERTIFICATE OF COMMENDATION (4) CERTIFICATE OF APPRECIATION ”
         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19870714 UNTIL 19890718; AND 19960727 UNTIL 20060308 ”

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. Applicant contends his misconduct was an isolated incident in more than 11 years of service .

Decision

Date : 20 1 1 0 4 07 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 identif ied one decisional issue for the Board ’s consideration . The Board complete d a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent sta ndards of equity and propriety. The Applicant’s record of service did not contain any 6105 counseling retention warnings or commanding officer’s nonjudicial punishment. The record did reflect for of the UCMJ: Article ( Wrongful use, possession, etc of controlled substance, marijuana, 48 ng/ml, NAVDRUGLAB 20061026) . The Applicant did not have a pre-service drug waiver but did admit to using marijuana prior to entering the Marine Corps . Additionally, he signed his acknowledg ment and complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 17 Jun 1998. Based on the Article 112a violation , processing for administ rative se paration is mandatory in accordance with the Marine Corps Separation and Retirement Manual. When notified of a dministrative separation processing using the procedure on 21 May 2007 , the Applicant exercised his right to consult with a qualified coun sel, but waived his rights to submit a written statement and request an administrative separation board . The Applicant was administratively separated from the Marin e Corps on 15 Jun 2007 with an Under Other Than Honorable Conditions discharge for his current enlistment .

: (Decisional) ( ) . The Applicant contends h is misconduct was an isolated incident in more than 11 years of service. Despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline ; violation of UCMJ Article 112a meets this standard . Since an administrative discharge is not punishment, the decision to administratively discharge a service member is made independently of and does not require adjudication at court s -martial or NJP . The characterization of service is a description of the service provided during the member’s current enlistment and is not a description of his total, multienlistment service . When the service of a member of the Naval Service has been honest and faithful, it is appropriate to characterize that service as H onorable. A n 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 the conduct expected of members of the N aval S ervice. The Applicant’s current enlistment was marred by his violation of UCMJ Article 112a , which is punishable by confinement up to two years and a Bad Conduct or Dishonorable Discharge if awarded at trial by punitive courts-martial (Special or General). After considering the circumstances surrounding the Applicant’s case, his command chose to refer him to trial by Summary Court Martial , thereby avoiding a possible punitive discharge . The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects his willful failure to meet the requirements of conduct expected of all Marines, especially one of his grade (SSgt/E-6), experience, and total length of service (more than 1 1 years) and falls short of what is required for an upgrade in the characterization of service. Relief d enied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries and administrative separation process, the Board found Therefore, the awarded characterization of service for his most recent enlistment shall and the narrative reason for separation shall remain . The Applicant remains eligible and is strongly encouraged to request a personal appearance hearing prior to reaching 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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USMC | DRB | 2011_Marine | MD1100853

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