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USMC | DRB | 2011_Marine | MD1101518
Original file (MD1101518.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110602
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)       19980221 - 19980713     Active:   19980714 - 20020214 HON

Period of Service Under Review:
Date of Current Enlistment: 20020215     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20060214      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 30 D a y ( s )
Education Level:        AFQT: 46
MOS: 3043
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (4) Pistol MM LoA

Periods of UA / CONF :

NJP:

- 200 40220 :       Article (Wrongful use, possession, etc., of controlled substances: Marijuana 27 ng/ml )
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20050102 :       For administrative separation due to violation of A rticle 112a.

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 980714 UNTIL 020214 ”
        
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 contends his misconduct is an isolated incident in an otherwise honorable period of service.
2.       Applicant contends he completed his required active service obligation prior to separation.
3.       Applicant contends his command was unduly negligent in processing his administrative separation.

Decision

Date: 20120503           Location: Washington D.C.        Representation:

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 6105 counseling warning and for o f the Uniform Code of Military Justice (UCMJ): Article ( Wrongful use, possession, etc. of controlled substances , 1 specification) . The Applicant had no pre-service drug waiver prior to entering the Marine Corps, but acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs , with signature, on 19 February 1998 . 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 . The Applicant’s record reflects two positive urinalysis results for marijuana, one on 13 Mar 2003 with a result of 212 ng/ml THC and a second on 20 Sep 2005 with a result of 27 ng/ml THC. For the first marijuana offense on 13 Mar 2003, t he Applicant was taken to NJP almost one year later on 20 Feb 2004 for the Article 112a violation . His command had initially referred the Article 112a violation to a Special Court-Martial but subsequently withdrew the charge and adjudicated the offense at Battalion NJP. No a dministrative separation processing for this Article 112a violation was found in the Applicant’s record. The Applicant then had a positive urinalysis dated 20 Sep 2005. The Applicant’s record reflects he refused NJP arising from this event , and the misconduct was preferred to a second Special Court - Martial on 04 Nov 2005. T he Applicant’s record contained referred charges to Special Court - Martial on 22 Dec 2005. The Government then withdrew charges against the Applicant and notified him of processing for administrative separation. On 24 Jan 2006 an administrative discharge board convened and completed its proceedings on 03 Feb 2006. The administrative discharge board voted 3-0 for separation with an Under Other Than Honorable Conditions characterization of service and no suspension of the discharge . The Applicant was discharge d on 14 Feb 2006.

: (Decisional) ( ) . Applicant contends his misconduct is an isolated incident in an otherwise honorable period of service. Certain serious offenses warrant separation from the service 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. Despite two instances of illegal drug use, t he command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. The NDRB determined an upgrade would be inappropriate. Relief denied.
: (Decisional) ( ) . Applicant contends he completed his required active service obligation prior to separation. After a review of the enlistment dates and contract terms, the NDRB concluded that the
 Applicant’s effective end of obligated service was 1 5 February 2006. The Applicant was administratively discharged on
14 February 2006. The NDRB found no impropriety with the Applicant’s date of discharge . Relief denied.


: (Decisional) ( ) . Applicant contends his command was unduly negligent in processing his administrative separation. The NDRB reviewed the chronology of events surrounding the Applicant’s m i s conduct. As it pertains to separation, a ccording to the M arine Corps Separation and Retirement Manual, section 6102 , “Once separation action has begun, prompt forwarding, review, and decision in each case is essential. Proceedings are initiated on the date a command receives a written request for separation from a member or on the date a command delivers a member notice of separation proceedings per section 3 of this chapter. The goals are measured from the date of notification or initiation of a voluntary request until the actual date of separation. Failure to complete an action within the prescribed time in no way bars separation or affects characterization. Every effort should be made, however, to meet the established goals.” Concerning time limitations for administrative discharge board proceedings, the Marine Corps Separation and Retirement Manual, Section 6106, Subsection 3 , states, “ No ‘ statute of limitations ’ exists for administrative separations. Accordingly, a Marine may be processed for separation based on conduct notwithstanding (1) the length of time between the conduct and the notification of separation or (2) the expiration of a statute of limitations for court-martial or non-judicial punishment. ” Despite the 11-month period between the first urinalysis on 13 M arch 2003 and related NJP on 20 Feb ruary 2004 , the Applicant was still accountable for the results of the first urinalysis and second urinalysis (20 S eptember 2005). The characterization and narrative reason were proper and equitable. 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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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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