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USMC | DRB | 2011_Marine | MD1101039
Original file (MD1101039.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110315
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)       20050223 - 20050306     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20050307     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20081003      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 27 D a y ( s )
Education Level:        AFQT: 51
MOS: 1833
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (2) LoA (3)

Periods of UA / CONF :

NJP:

- 20071017 :      Article (Drugs – cocaine 155 ng/ml )
         Awarded: (to E-2) Suspended:

- 20080407 :      Article (Firearm, discharging – through negligence)
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20050621 :       For disobedience of a direct order. The order was that there will be no tobacco use while serving as a student at Marine Combat Training. Specifically, on 20050615, you were observed by a Combat Instructor with chewing tobacco in your mouth during A N /PRC 119 performance evaluation. You failed in obeying a direct order.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “ 2005 03 07 ”

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 seeks an upgrade to obtain VA benefits.
2.       Applicant seeks an upgrade to improve employment opportunities.
3.       Applicant seeks rank reinstatement.
4.       Applicant contends his discharge was inequitable based on one isolated incident, which occurred prior to his second combat deployment, after which he was separated from the Marine Corps.

Decision

 Date: 20 1 1 0 5 12            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 . T he Board complete d a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included one 6105 retention counseling warning and two for o f the Uniform Code of Military Justice (UCMJ): Article ( Wrongful use, possession, etc. of controlled substance, 6 Sep 2007 urinalysis, cocaine 155 ng/ml) and Article ( Firearm, discharging through negligence, improper clearing an M249 SAW in Iraq, o/o 31 Mar 2008 ) . The Applicant a pre-service drug waiver for using marijuana prior to entering the Marine Corps , acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 22 December 2004 . Based on the Article 112a violation , processing for administ rative separation is mandatory per the Marine Corps Separation and Retirement Manual (MARCORSEPSMAN) . For unknown reasons, the Applicant was not processed for separation, but instead was deployed less than 4 days later to Iraq on 21 Oct 2007 . During the combat deployment, the Commanding General, First Marine Division distributed a memorandum to all commanders directing that they retrograde and cease deployment of Marines or Sailors under their charge who were pending administrative separation. The Applicant was subsequently transferred out of Iraq with the unit’s advanced party at the end of Apr 2008. When later notified of a dministrative separation processing using the procedure on 10 Jul 2008 , the Applicant rights to consult with a qualified coun sel, submit a written statement , and request an administrative separation board . The Applicant was subsequently separated from the Marine Corps on 3 Oct 2008 with an Under Other Than Honorable Conditions discharge due to Misconduct (Drug Abuse).

: (Nondecisional) The Applicant seeks an upgrade to obtain VA benefits. The U.S. Department of Veterans Affairs 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 improve 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.
: (Nondecisional) The Applicant seeks rank reinstatement. Since the NDRB has no jurisdiction over reenlistment, reentry, promotion, reduction or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to overturn a service member’s rank reduction as a result of administrative or punitive action . Only the B oard for Correction of Naval Records ( http://www.donhq.navy.mil/bcnr/bcnr.htm ) can make changes of this nature .


Issue 4 : (Decisional) ( ) . The Applicant contends his discharge was inequitable based on one isolated incident, which occurred prior to his second combat deployment, after which he was separated from the Marine Corps. The Board conducted an extensive review of the Applicant’s service records and found that the Applicant, after being found guilty of violation of UCMJ Article 112a at NJP , was not processed for administrative separation , which is mandatory per the MARCORSEPSMAN. Instead, his command deployed him to Iraq until they were directed to return the Applicant stateside due to mandated policy set forth by the Commanding General , First Marine Division . Marines who test positive for illegal drug use are typically given Under Other Than Honorable Conditions discharges. After considering the entirety of the Applicant’s service, his cumulative proficiency and conduct markings, and the fact that the command deployed the Applicant to Iraq (Oct 2007 to Apr 2008) after he committed misconduct that necessitated mandatory administrative separation processing , the board determined that partial relief was warranted. Full relief to Honorable was not granted due to the serious nature of drug abuse in the Marine Corps.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries and the administrative separation 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), 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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