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USMC | DRB | 2011_Marine | MD1101547

Original file (MD1101547.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20110607

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)       19981125 - 19990815     Active:

Period of Service Under Review:
Date of Current Enlistment: 19990816     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20031010      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 25 D a y ( s )
Education Level:        AFQT: 40
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (2) Pistol (2) CoC

Periods of UA /CONF : UA: NONE                      CONF: 20030906 - 20030920 (15 days)

NJP:     SPCM:             CC:

SCM:
- 20030829 :       Art icle 81 (Conspiracy , 2 specifications )
                  Specification 1: Wrongfully using a controlled substance analogue, natural substance, chemical,                   prescribed or over the counter drug, or pharmaceutical compound with the intent to induce                 intoxication, excitement and/or stupefaction of the central nervous system , 20030307
                  Specification 2: Use, introduce, distribute mushrooms (psilocybin) , 20030307
         Art icle (Failure to obey order or regulation , SECNAVINST 5300.28C, 20030307 )
         Art icle (Wrongful use, possession, etc , of a controlled substance , 4 specifications )
                  Specification 1: Wrongfully use mushrooms o /o 2003030 2
                 Specification 2: Wrongfully distribute mushrooms on 2003030 2
                  Specification 3: Wrongfully use mushrooms on 2003030 7
                  Specification 4: Wrongfully possess mushrooms on 2003030 7
         Sentence : RIR (to E-1) CONF 30 days (20030906-20030920, 15 days)

Retention Warning Counseling :
- 20030819 :       For lack of judgment in the unlawful use of (mushrooms) a controlled substance

Administrative Corrections to the Applicant’s DD 214

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

         Block 25, “ MARCORSEPMAN 1005 ”
         Block 28, “ COMPLETION OF REQUIRED ACTIVE SERVICE ”

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. Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present, Paragraph 1005, DISCHARGE FOR EXPIRATION OF ENLISTMENT OR FULFILLMENT OF SERVICE OBLIGATION .

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 discharge was inequitable due to one isolated incident in 5 years of honorable service.

Decision

Date: 20 1 2 0 8 09 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 complete d a thorough review of the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included one 6105 counseling retention warning but did not contain any commanding officer nonjudicial punishment. The record did reflect one S ummary C ourt -M artial for o f the Uniform Code of Military Justice (UCMJ): Article 81 ( Conspiracy , 2 specific ations : wrongful use of a controlled substance analogue, natural substance, chemical, prescribed or over the counter drug, or pharmaceutical compound with the intent to induce intoxication, excitement and/or stupefaction of the central nervous system ; and u se d , introduce d , and/or distribute d mushrooms (psilocybin) ), Article 92 ( Failure to obey an order or regulation, u se of and introduction of mushrooms (psilocybin ), and Article 112a ( Wrongful use, possession, etc of a controlled substance, mushrooms (psilocybin), 4 specifications: wrongful possession on 7 March 2003; wrongful use on 7 March 2003; wrongful use on 8 March 2003; wrongful distribution on 2 March 2003). The Applicant also had a pre-service drug waiver for using marijuana three times prior to entering the Marine Corps, and acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 23 N ovember 1998 . Based on the Article 112a offenses committed by the Applicant, the Applicant’s command was obligated to process him for administrative separation in accordance with the Marine Corps Separation and Retirement Manual (MARCORSEPMAN). Although a Headquarters Marine Corps Stop Loss policy was announced in January 2003 (MARADMIN 007/03), there is no documentation within the service records to explain why the Applicant was not processed for administrative separation, which was mandatory per the MARCORSEPMAN for the Article 112a violations . For reasons unclear to the NDRB , the Applicant was allowed to remain on active duty during the stop - loss period and then allowed to separate from the Marine Corps 56 days past his end of active obligated service (EAOS) under the provisions of MARCORSEPMAN chapter 1005, C ompletion of R equired A ctive S ervice. The Applicant was discharged from the Marine Corps on 10 March 2003 with a General (Under H o nor able Conditions) characterization of service due to Completion of Required Active Service.

: (Decisional) ( ) . The Applicant contends his discharge was inequitable due to one isolated incident in 5 years of honorable service. The Board completed a thorough review of the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety. C ertain serious offenses, even though isolated, warrant separation from the Naval Service in order to maintain good order and discipline; violation of Article 112a meets this standard. Normally, similar violations of UCMJ Article 112a result in a referral for trial by special or general court-martial. If convicted by a special or general court-martial, a respondent would face a sentence that could include between 2-5 years confinement and a B ad C onduct or D ishonorable D ischarge. The Applicant , however, was tr ied and subsequently found guilty via summary court-martial. For reasons undetermined, the Applicant was not processed for administrative separation from the Marine Corps for Misconduct - Drug Abus e, which would normally result in an Under Other Than Honorable Conditions discharge. Since the Applicant was allowed to remain in service while extended past his EAOS due to the Headquarters Marine Corps directed Stop Loss policy, once the policy was halted, the Applicant was eligible to separate from service under MARCORSEPMAN chapter 1005 (Completion of Required Active Service) .

Per the MARCORSEPMAN , if a member’s average P roficiency marks are below 3.0 and/or average C onduct marks are below 4.0, the Marine can be awarded a Gener al (Under Honorable Conditions) discharge upon completion of required active service . A review of the Applicant’s service record reveals his enlistment Pro and Con m arks average was 4.5 and 4.5 , respectively, which qualifies the Applicant for an Honorable characterization. Although the Applicant’s egregious in-service misconduct warranted a characterization of service as Under Other Than Honorable Conditions , since he was not discharged for misconduct prior to his EAOS or prior to the halt of the Stop Loss Policy that had extended him past his EAOS, the Applicant was eligible and should have received an Honorable discharge based solely on his P ro /C on average. Accordingly, the NDRB determined that the Applicant warranted relief based on equity. Relief warranted.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and the completion of required active service discharge process, the Board found the discharge was proper but not equitable at the time of discharge. Therefore, in accordance with the MARCORSEPMAN, the awarded characterization of service shall HONORABLE and the narrative reason for separation shall remain COMPLETION OF REQUIRED ACTIVE SERVICE. 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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USMC | DRB | 2011_Marine | MD1101547

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