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USMC | DRB | 2011_Marine | MD1100947
Original file (MD1100947.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110304
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)       20070414 - 20070423     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20070424     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20100210      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 19 D a y ( s )
Education Level:        AFQT: 72
MOS: 6531
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:

- 20091013 :       Article (Fail to obey the same by consulting and receiving medications from outside sources)
         Article (Did treat with contempt and was disrespectful in deportment toward the Sergeant Major)
         Awarded: Suspended:

- 20091123 :      Article (Fail to obey the same by wrongfully disobeying rules of restriction by not reporting to the Barracks Duty Non-Commissioned Officer at the specific time)
         Awarded : Susp ended:

- 20091222 :      Article (Did treat with contempt and was disrespectful in deportment toward SSgt S_)
         Awarded : Susp ended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20091013 :       For consulting and receiving medications from outside sources, did treat with contempt and was disrespectful in deportment toward the Sergeant Major

- 20091123 :       For on or about 20091109, without authority, absent himself from his place of duty, wrongfully disobeying rules of restriction by not reporting to the Barracks Duty Non-Commissioned Officer at the specific time

- 20091218 :       For misconduct drug use and pattern of misconduct


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 seeks an upgrade for service benefits.
2.       The Applicant seeks an upgrade to enhance employment opportunities.
3.       The Applicant contends he was not provided sufficient time to med ical ly recover from injuries .

Decision

Date : 2012 0301             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 ( , , In contempt and was disrespectful in deportment toward the Sergeant Major and a Staff Sergeant ) and Article ( Failure to obey an order or regulation, 2 specifications, Consulting and receiving medications from outside sources ). acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 12 April 2007. Prior to the Applicant’s motorcycle accident on 24 June 2009, his command was in the process of administratively separating him on the grounds of his civilian charges of grand theft and forgery of a prescription; however, due to his accident, the separation was put on hold. Civilian authorities dropped many of the charges in light of the Applicant’s accident; nevertheless, after the accident he was still awaiting felony charges of burglary, prescription fraud, receiving stolen property, and unlawful possession. Based on the offense s committed by the Applicant, command administratively processed for separation. The Applicant was notified of separation proceedings on 10 December 2009 for Misconduct - Drug Abu se and a Pattern of Misconduct. When notified of administrative separation processing, the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board. On 22 December 2009 the Commanding Officer of Marine Light Attack Helicopter Training Squadron 303 recommended the Applicant be separated with an Under Other Than Honorable Conditions Discharge by reason of M isconduct - D rug A buse and P attern of M isconduct. The basis for this recommendation was the Applicant’s two drug rehabilitation refusals, his forgery of prescriptions, his nonjudicial punishments, and his numerous legal issues. On 11 January 2010 , the Commanding Officer of Marine Aircraft Group 39 recommended administration separation of the Applicant for his “near -continuous pattern of civil and military misconduct, as well as his documented addiction to prescription medications.” Then o n 5 February 2010 , the Commanding General of Third Marine Aircraft Wi ng ordered the Applicant to be discharged within ten days with a n Under Other Than Honorable Conditions characterization of service on account of the Applicant’s pattern of misconduct and for his misconduct due to drug abuse ; M isconduct - Drug Abuse was selected as the primary basis for discharge .

: (Nondecisional) The Applicant seeks an upgrade for 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.

: (Nondecisional) The Applicant seeks an upgrade to enhance employment 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.



: (Decisional) ( ) . The Applicant contends he was not provided ample time to medically recover from injuries sustained from a motorcycle accident . On 18 August 2009 , the Palo Alto Rehabilitation Team, consisting of various medical experts, held a care coordination conference call with the Palo Alto Marine Corps Liaison R epresentative , a team from Camp Pendleton, the Case Management Director, a Wounded Warrior Battalion representative, and the Case Manager for the Applicant’s particular case. It was recommended during the conference call that the Applicant be returned to his command on 24 or 25 August 2009 and reside in the barracks. In an attempt to control the Applicant’s prescription medication intake, on 2 October 2009 , the Command Flight Surgeon had the Applicant sign documents instructing him to have his prescription filled via the Flight Surgeon only. The Applicant disregarded the instructions and continued to have his prescriptions filled through civilian means. Then o n 6 October 2009 , t he Applicant’s command referred him to the Consolidated Substance Abuse Counseling Center to be evaluated , but he refused treatment. On 9 October 2009 , the Applicant was undergoing detoxification at Naval Hospital Camp Pendleton and was subsequently transferred to Substance Abuse Counseling at Point Loma at which he stayed approximately one week before he left , resulting in a second refusal of treatment . The government presum es regularity in the conduct of its affairs. The Applicant bears the burden of presenting substantial and credible evidence to support his claim. There is no evidence in the record, nor has the Applicant produced any evidence, to support his contention that he did no t have enough time to recuperate . The Applicant’s statement alone does not overcome the government’s presumption of regularity in this case. Therefore, based on the presumption of regularity, th e NDRB concluded that the command conducted its affairs appropriately . The NDRB also concluded the Applicant’s discharge was proper and equitable. 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 further 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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