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USMC | DRB | 2011_Marine | MD1101155
Original file (MD1101155.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110405
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)       19890207 - 19890521     Active:            19890522 - 19960222
                                             19960223 - 19990315
                                             19990316 - 20020419
                                             20020420 - 2006090 4

Period of Service Under Review:
Date of Current Enlistment: 2006090 5     Age at Enlistment:
Period of E nlistment : Years 9 Months
Date of Discharge: 20090226      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 21 D a y ( s )
Education Level:        AFQT: 58
MOS: 6114
Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (6) Pistol EX (5) (5) (2) (8) (JTF Liber i a) (2) (Kuwait) (5) CoC LoA (4) MM CoA

Periods of UA / CONF :

NJP:     SCM:              CC:      Retention Warning Counseling :

SPCM:

- 20071130 :       Art icle (Wrongful use of Cocaine 299 ng/ml )
         Sentence : RIR REPRIMAND

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 :        



DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

 1.       Applicant contends retirement was approved and takes precedence over misconduct.
2.       Applicant contends he was not allowed to respond to the Marine Air craft Wing (MAW) commander’s recommendation to not suspend his discharge.
3 .       Applicant contends prior honorabl e service mitigates his misconduct.

Decision

Date : 20 1 20313            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. T he Board did complete 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 Special Court - Martial for o f the Uniform Code of Military Justice (UCMJ): Article ( Wrongful use, possession, etc. of controlled substances ) . 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, submit a written statement , and request an administrative board , which is the venue for the Applicant to submit all items, verbal, written, and other, in support of his case . The administrative board found that the preponderance of the evidence proved that the misconduct did occur and recommended separation with a characterization of U nder Other Than Honorable Conditions, but recommended s uspension of the discharge for 11 months. All levels in the Applicant’s chain of command agreed with the board ’s recommendation s except for the Commanding General , 2nd M arine M AW , who recommended that the discharge not be suspended . Per the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) , w hen a member is being processed for involuntary separation and has 18 years or more total active military service (sanctuary period, i.e., within two years of becoming eligible for military retired or retainer pay), the S eparation A uthority is the D eputy Commandant (Manpower & Reserve Affairs) (DC M&RA). The Applicant ’s administrative processing occurred within this two- year window . T hus , the S eparation A uthority was the DC (M&RA) , who concurred with the MAW commander’s recommendation and ordered the Applicant be separated for Misconduct (Drug Abuse) with an Under Other Than Honorable Condition characterization of service. While awaiting the decision on his separation, the Applicant applied and was approved for retirement, which carries with it the condition that he is not eligible for retirement until he completes 20 years of honorable service.

: (Decisional) ( ) . Applicant contends retirement was approved and takes precedence over misconduct . While reviewing this case , it was important to discuss the priority given to approved retirement dates versus impending administrative separation processing , which takes priority . According to MARCORSEPMAN, (MCO P1900.16F), effective 1 September 2001 until Present, Section 7 002 CREDITABLE SERVICE, “4. Safety Zone. Per 10 U.S.C. 1176, enlisted members who are within 2 years of qualifying for transfer to the FMCR shall be retained on active duty until qualified for transfer to the FMCR, unless the member is first retired, separated , or discharged under any other provision of the law. This sanctuarial protection is commonly referred to as the safety zone. The sanctuary provisions do not preclude a ) Administrative separation , b ) Separation under the dis a bility statutes , and c ) Worldwide assignability/full deployability. ” The approval by Headquarters, Marine Corps for retirement does not override or take precedence over administrative separation for misconduct prior to reaching 20 years of honorable service. The NDRB determined the administrative separation for misconduct was proper and equitable. Relief denied.




: (Decisional) ( ) RELIEF NOT WARRANTED. Applicant contends he was not allowed to respond to the MAW commander’s recommendation to not suspend his discharge. The administrative board is the venue for the Applicant to submit all items, verbal, written, and other, in support of his case. There is no requirement for the servicemember to be informed of the recommendations of each level of the chain of command as a separation package is routed for final approval. The NDRB thoroughly reviewed the timeline and recommendations by all levels of the chain of command and discerned no impropriety or inequity in the final approval or decision by DC (M&RA). Relief denied.
: (Decisional) ( ) RELIEF NOT WARRANTED . Applicant contends prior honorable service mitigates his misconduct. 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, awards, 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. Although an administrative separation board, his commanding officer, and the Marine Aircraft Group commander recommended a suspension of his discharge for 11 months so that he could accrue 20 years of honorable service for retirement, the MAW commander recommended otherwise and the Separation Authority properly and equitably ordered the Applicant’s discharge with an Under Other Than Honorable Conditions characterization of service for Misconduct (Drug Abuse). As a Staff Noncommissioned Officer tasked with the critically important job of overseeing Quality Assurance for his squadron, he held a vital position of leadership and was expected to exhibit the highest standards of conduct. 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.

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 .


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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