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USMC | DRB | 2011_Marine | MD1101136
Original file (MD1101136.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110324
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)       20040608 - 20040815     Active:   20040816 - 20081001

Period of Service Under Review:
 Date of Current Enlistment: 20081002     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20100626      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 25 D a y ( s )
Education Level:        AFQT: 61
MOS: 0231
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle Pistol (3) (3)

Periods of UA / CONF :

NJP:

- 20100419 :      Article (Wrongful use of a controlled substance, MDMA 1599 ng/ml)
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling:

- 20100511 :      For violation of A rticle 112a, Wrongful use of MDMA 1599 ng/ml

Administrative Corrections to the Applicant’s DD 214

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

         “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 040816 UNTIL 081001”

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 the characterization of his service as Other Than Honorable (OTH) is inequitable , because it does not accurately describe his time in service due to the fact that the OTH is based on one mistake in a relatively long and fault-fre e period of honorable service.
2 .       The Applicant contends he was not properly advised of his rights, nor fully explained his options during the administrative separation process, as the advice he received was misleading and unclear.
3.       The Applicant contends his discharge was inequitable , because his command did not consider his military record when recommending that he receive an OTH discharge. He further argues that his commanders rarely interact ed with him and one of them s ubmitted a recommendation for separation with an OTH characterization that had misleading information.

Decision

 Date: 20 1 2 0426            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 warnin g 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 did not require a pre-service drug waiver for using illicit drugs prior to entering the Marine Corps . He acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 3 June 2 004 . Based on the Article 112a violation , processing for administ rative separation is mandatory . When notified of a dministrative separation processing using the procedure, the Applicant rights to consult with a qualified coun sel . He waived his right to submit a written statement and request an administrative board .

: (Decisional) ( ) . The Applicant contends the characterization of his service as OTH is inequitable , because it does not accurately describe his time in service due to the fact that the OTH is based on one mistake in a relatively long and fault-free period of honorable service. He argues that his average P roficiency and C onduct marks should have been above 4.0/4.0 , which would have qualified him to receive a General discharge . Instead, he received final markings of 3.9/3.9, which led him to believe his markings were altered to justify the OTH discharge. The NDRB determined that the Applicant’s average P roficiency and Co nduct marks were 4.3/4.4 , respectively, but they did not preclude his service from being characterized as OTH. Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Marine Corps to maintain proper order and discipline. Violation of Article 112a is one such offense requiring mandatory processing for administrative separation regardless of grade, performance, 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. The NDRB determined that the characterization of the Applicant ’ s discharge was equitable. Relief denied.

: (Decisional) ( ) . The Applicant contends he was not properly advised of his rights, nor fully explained his options during the administrative separation process, as the advice he received was misleading and unclear. There is no evidence in the record, nor has the Applicant produced any evidence, to support his contention that he was not properly advised of his rights, the advice he received was misleading and unclear , or that his options were not fully explained to him. The Applicant’s statement alone does not overcome the government’s presumption of regularity in this case. The Applicant’s administrative separation paperwork reveals that he waived, in writing, his rights to submit a statement and to appear before an administrative separation board. Relief denied.

: (Decisional) ( ) . The Applicant contends his discharge was inequitable , because his command did not consider his military record when recommending that he receive an OTH discharge. He further argues that his commanders rarely interacted with him, suggesting they did not know much about him, and that one of them submitted a recommendation with misleading information about an occasion of prior drug use . Assuming that the Applicant’s claim that his commanders rarely interacted with him is true, it is all the more likely that his command did consider his record because that would have been their main source of information about him upon which to base a recommendation. Commanders are also allowed to consider matters for extenuation and mitigation. The NDRB is convinced that his command did consider his record of service , as well as any matters or e x tenuation and mitigation that might have been presented , and still concluded that his one instance of misconduct significantly outweighed all the positive aspects of his service . The command ultimately recommended the more lenient administrative discharge instead of pursuing a punitive discharge after a Special Court-Martial. The NDRB also determined that the mention of a second drug use had no bearing on the final discharge characterization. The Applicant’s discharge for a single illegal drug use was completely in line with what others received for similar misconduct. The NDRB determined that the Applicant’s claims are without merit and concluded that relief based on this issue is not warranted. 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), 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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