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USMC | DRB | 2011_Marine | MD1101362
Original file (MD1101362.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110509
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to: INVOLUNTARY DISCHARGE , JBK1 , JNF1 , MISC, GEN

Summary of Service
Prior Service:
Inactive:         USMCR (DEP)       20070622 - 20070729     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20070730     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20100825      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 27 D a y ( s )
Education Level:        AFQT: 82
MOS: 0811
Proficiency/Conduct M arks (# of occasions): 4.3 (8) / 4.1 (8)   Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (2d award ) , , , , CoA

Periods of UA :

Periods of Confinement: 20100513 – 20100528 (16 days)
Periods of Combat Service: NONE           Deployment History: BLT, 31st MEU

NJP:     SPCM:    CC:      Retention Warning Counseling :

SCM:

- 20100513 :      Article ( Failure to obey orders or regulations; specifically , w rongful possessi on of chemical substance known as SPICE )
         Article (Drunken or reckless operation of vehicle, aircraft, or vessel)
         Article ( Assault and battery - Commit an assault upon his wife)
         Article (Wrongfully communicate a threat - to wit “If you try to get up and leave I’m going to knock you down or take you down)
         Sentence: (20100513 – 20100528, 16 days)

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 .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 92 , 111, 128, and 134 (as specified).


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

Applicant’s Issues

 Decisional issues : The Applicant contends that his characterization of service at discharge was inequitable: specifically, (1) that it was based on an isolated incident in 37 months of service with no other adverse action; (2) he was falsely accused of possessing Spice and coerced into signing a plea deal; and ( 3 ) , that he was mistreated by his command due to having marital relationship issues with his wife, which resul ted in a physical altercation.

Decision

 Date: 20 1 1 0915           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 NDRB presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The NDRB conducted a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of both equity and propriety.

The Applicant entered military service at age 21 with out any moral waivers to enlistment standards . H e enlisted on a guarantee of training in the Combat Support field , complet ing the Basic Field Artillery School training pipeline . The Applicant’s service record reflects his acknowledgment and understanding - in writing - of the Marine Corps Zero Tolerance Policy on Illegal Drug Use, signed upon entering the delayed entry program on 22 June 2007 . The Applicant’s official record of service include s no Marine Corps Separation and Retirement Manual (MARCORSEPMAN) paragraph 6105 retention-counseling warnings , but does document one administrative summary court - martial f or violation of the Uniform Code of Military Justice (UCMJ): specifically, Article 92 (Failure to obey an order or regulation – to wit , violation of Marine Corps Forces Pacific order 5 355.2, possession of Spice ) ; Article 111 (Drunken or reckless operation of a motor vehicle); Article 128 (Assault, consummated by a battery); and Article 134 (Communicating a threat) .

The Applicant was notified of the Commanding Officer’s recommendation for administrative separation in writing on 14 April 2010 . The Applicant was advised that the basis for separation was Misconduct ( Drug Abuse ) - as evidenced by his violation of the UCMJ, Article 92 (Failure to obey a lawful order - possession of Spice ) - in accordance with paragraph 6210.5 of the MARCORSEPMAN . The Applicant acknowledged - in writing - that he understood that the least favorable characterization of service at discharge was Under Other Than Honorable Conditions. He further elected to exercise his right to consult with qualified legal counsel , but chose not t o submit a written statement to the Separation Authority or to request an administrative hearing board be held to present his case for retention . On 02 August 20 10 , the Separation Authority approved the Command’s recommendation for discharge and designated that the basis for separation would be Misconduct ( Drug Abuse ), having determined that the evidence of record supported the discharge action and that the characterization of service , as recommended, was warranted. On 25 August 20 10 , the Applicant was discharged with a n Under Other Than Honorable Conditions characterization of service and was further assigned a reentry code of RE-4B (not recommended for reenlistment, in service drug abuse) .

(Decisional Issues ) ( ) . The Applicant contends that his characterization of service at discharge was inequitable: specifically, (1) that it was based on an isolated incident in 37 months of service with no other adverse action; (2) he was falsely accused of possessing Spice and coerced into signing a plea deal; and (3), that he was mistreated by his command due to having marital relationship issues with his wife, which resulted in a physical altercation.
The NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety.


(Propriety) Paragraph 6210.5 of the MARCORSEPMAN specifies that Commanders shall process all Marines for administrative separation for the illegal, wrongful, or improper use, possession, sale, transfer, distribution, or introduction on a military installation , of any controlled substance, marijuana, steroids, or other dangerous or illicit drug or other forms of substance abuse (such as designer drugs, fungi, chemicals not intended for human consumption, etc.) as defined in SECNAVINST 5300.28C . In the A pplicant ’s specific case, he was found guilty at summary court - martial for violatin g Article 92 of the UCMJ ( failure to obey lawful order s or directive s ) due to his possession of the designer drug Spice - a direct violation of the Commanding General, Marine Corps Pacific written order regarding that substance and other designer drugs and chemicals not intended for human consumption . As specified in paragraph 6210.5, all Marines (regardless of pay grade) identified for mandatory processing under the criteria of paragraph 6210.5 will be processed for administrative separation by reason of misconduct, due to drug abuse, on the first offense. The Applicant acknowledged the notification and freely chose his election of rights. Based on a review of the evidence and circumstances unique to this case, the NDRB determined that the Applicant’s misconduct properly satisfied the requirements established for separation based on Misconduct ( Drug Abuse ) as the basis for discharge. As such, the NDRB determined there was no impropriety due to an error of fact, law, procedure, or discretion with the discharge. Accordingly, relief based on propriety is denied.

Decisional Issue 1 (Equity) The Applicant contends that his characterization of service at discharge was inequitable; it was based on an isolated incident in 37 months of service with no other adverse action. Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Nav al Service to maintain good order and discipline. Violation of the Marine Corp ’s Zero Tolerance Policy regarding drugs is one of those offenses. Pursuant to the finding of a violation of paragraph 5 (c) of the Secretary of the Navy Instruction (MILITARY SUBSTANCE ABUSE PREVENTION AND CONTROL) and the Commanding General, Marine Corps Pacific Order , the Applicant’s Commanding Officer recommended that he be administratively separated from the service. The Commanding Officer determined that the Applicant’s disregard for Naval Service policy and Marine Corps orders , coupled with his other serious misconduct , illustrated that the Applicant had no potential for any further active Naval Service and, as such, warranted separation. Relief denied.

Decisional Issue 2 (Equity) The Applicant contends that his characterization of service at discharge was inequitable: he was falsely accused of possessing Spice and coerced into signing a plea deal . The e vidence of record documents that the Applicant was detained for fleeing the scene of an assault (upon his wife), that he was driving a vehicle while under the influence of alcohol (BAC in excess of that authorized on the military installation), and that investigators found a container of Spice in his possession (in his article of clothing in his personally owned vehicle). These facts were documented in the apprehension order and were further investigated by the Naval Criminal Investigative Service and documented in their investigation. The Applicant, having been fully advised of his rights, pled guilty to the charges as specified. T he Command did not pursue punitive actions (i.e., a criminal prosecution by trial by Special or General Court-Martial) , but instead opted for the more lenient administrative summary court - martial and administrative separation. The Applicant was not convicted criminally; he was administratively punished under Naval Regulations and then administratively processed for separation based on the Commander’s determination that retention in the Naval Service was no longer warranted.

An Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for Naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. An 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 Naval Service. Based on the seriousness of the offense s , the NDRB determined that the Applicant had engaged in conduct involving one or more acts or omissions that did constitute a significant departure from th at c onduct expected of Marines. As such, the NDRB determined that the Applicant was not falsely accused , t hat his mis conduct of record did warrant the characterization of service received , and that a change is not warranted.

Decisional Issue 3 (Equity) The Applicant contends that he was mistreated by his command due to having marital relationship issues with his wife, which resulted in a physical altercation . The NDRB reviews the propriety and the equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service. The Applicant was mistreated by his command; this fact is documented in the HQMC Inspector General’s complaint investigation and response. However, the mistreatment in punishment does not alter the fact that the Applicant had committed serious misconduct and had violated written orders and directives and the Marine Corps Policy on Illegal Drug Use. N othing indicates that the Applicant’s discharge itself was in any way inconsistent with the standards of discipline in the United States Marine Corps . A preponderance of the evidence reviewed supports the conclusion that the Applicant committed multiple serious offense s , that separation from the Naval Service was appropriate, and that a n OTH discharge was appropriate , was warranted , and was consistent with the characterization of discharge given others in similar circumstances . R elief denied.

 After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB determined the Applicant’s misconduct , as outlined in the preceding paragraphs, did involve one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service, and did outweigh the positive aspects of his service record . Accordingly, the NDRB discerned no inequity in the characterization of the Applicant’s service at discharge and that it was consistent with the characterization of discharge given others in similar circumstances. The NDRB’s vote was unanimous that an upgrade would not be appropriate and that relief is not warranted; therefore, the character of the discharge shall not change. 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 NDRB 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, specifically the paragraphs titled Additional Reviews and Post-Service Conduct .


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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