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USMC | DRB | 2011_Marine | MD1101551
Original file (MD1101551.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)       20090409 - 200911 15     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 200911 16     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20100930      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 8 D a y ( s )
Education Level:        AFQT: 77
MOS: 0600
Proficiency/Conduct M arks (# of occasions): ( 2 ) / ( 2 )          Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF : 20100824 - 20100831 (7 days )

NJP: 2

- 20100622 :      Article : (Absence without leave - missing formation)
          Article : ( Failure to obey order or regulation , 2 specifications )
         Specification 1: Found abusing i nhalant
          Specification 2: Special liberty violation
         Awarded: Suspended: (15 days)

- 20100723 :      Article : ( Failure to obey order, regulation - possession of Spice)
         Awarded: Suspended:

SCM:    SPCM:    CC:

Retention Warning Counseling:

- 20100622 :      For your NJP held on 20100622. On or about 2200, 20100601, you were found abusing an inhalant which violates SECNAVINST 5300.28D. O n or about 0600, 20100621, you were seen exiting a cab and admitted to staying the night in Motel 6 without having submitted a special liberty chit which is in violation of ScolO 5800.1A. On or about 0600, 20106021 you were not present for morning accountability formation.

- 20100723 :      For your NJP held on 20100709. On or about 1650, 2010716 you were searched by PMO and found to be in possession of Spice on your person and you also had multiple containers of S pice in your barracks room which is in violation of OPNAVINST 5350.4C, MCO P1700.24B and TECOM Order 5800.1A.



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 states that he feels strongly that he has changed his life , implying his post-service conduct warrants consideration for upgrading his discharge.
2.       The Applicant stated that he received meritorious awards , suggesting his record of service warrants consideration for upgrading his discharge.
3.       The Applicant believes that he suffered from depression , which led to his misconduct and subsequent discharge .

Decision

 Date: 20 1 2 0 320            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 governmental affairs 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 warnings and two non-judicial punishments for violations of the Uniform Code of Military Justice (UCMJ): Article ( Unauthorized a bsence , ) and Article ( Failure to obey order or regulation , ) . The Applicant a pre-service drug waiver for using marijuana prior to entering the Marine Corps, acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 7 April 2009. Based on the Article 112a violation, processing for administrative separation is mandatory . When notified of administrative separation processing, the Applicant rights to consult with a qualified counsel, submit a written statement , and request an administrative board .
: (Decisional) ( ) . The Applicant states that he has changed his life since his discharge. The NDRB is authorized to consider post-service factors in the re-characterization of a discharge. However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question. The Applicant did not submit any post-service documentation along with the DD Form 293 for the Board to evaluate his post-service character and conduct. His statement alone was not sufficient. His efforts needed to have been more encompassing. He could have provided documentation as specified in the Post-Service Conduct paragraph in the Addendum , however, c ompletion 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. Relief denied.

: (Decisional) ( ) . The Applicant state s that he received meritorious awards , suggesting his record of service warrants consideration for upgrading his discharge. Despite a service member’s prior record of service, certain serious offenses warrant separation from the Marine Corps to maintain proper order and discipline. Violation of Article 92 of the UCMJ is such an offense, particularly when it involves violatin g the policies concerning d rug abuse. Abusing inhalants with the intent to induce intoxication, excitement, or stupefaction of the central nervous system and possessing S pice is a violation of Article 92 of the UCMJ and usually result s 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 violated the Marine Corps’ policy concerning the abuse of inhalants . However, his command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. The NDRB found the characterization of the Applicant ’ s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances. Relief denied.


: (Decisional) ( ) . The Applicant believes that he suffered from depression , which led to his misconduct and subsequent discharge . The Board found no evidence in his service or medical record indicating that he was suffering from depression. When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline. However, the Board generally does not consider the circumstances surrounding the Applicant’s stated condition, the implied incorrect diagnosis, or the medical treatment given to the Applicant to be of sufficient nature to exculpate the Applicant’s misconduct. If he felt depressed, as a service member, he had access to resources to help him manage with his depression . There is no evidence in the record, nor did the Applicant provide any evidence , to indicate he attempted to utilize the numerous services available for service members who suffer from depression during their enlistment such as Navy Chaplains, Medical or Mental Health professionals, Navy Relief Society, Family Advocacy Programs, or the Red Cross. Instead, he chose to use inhalants and was in possession of S pice. The NDRB determined 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), 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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