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USMC | DRB | 2012_Marine | MD1200116
Original file (MD1200116.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20111025
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)       19981121 - 19990920     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19990921     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20020808      H ighest Rank:
Length of Service : Y ea rs M on ths 18 D a ys
Education Level:        AFQT: 58
MOS: 2171
Proficiency/Conduct M arks (# of occasions): /          Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle EX , Pistol SS , NDSM

Period of UA : 20020628 - 20020725 (30 days )

NJP: 1
- 20020506 :      Article 92 (Failure to obey order or regulation)
         Awarded: FOP , RESTR EPD Suspended: FOP

SCM: NONE        SPCM:   CC:

Retention Warning Counseling : 1
- 20000712 :       For driving under the influence of alcohol and underage drinking .

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.       The Applicant contends he was wrongly accused and persecuted due to his sexual predisposition.
2.       The Applicant contends his unit made no attempt to rehabilitate him for his drug abuse.
 3.       The Applicant contends that other Marines tested positive for drugs but were rehabilitated and retained.
 4.       The Applicant contends his command ignored medical’s recommendation that he be administratively separated for Personality Disorder.
5.       The Applicant contends his post-service conduct is worthy of consideration for an upgrade.

Decision

Date: 20 1 2 0802            Location: Washington D.C .         R epresentation : AMERICAN LEGION

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. The Applicant’s record of service included one 6105 counseling warning for driving under the influence of alcohol and underage drinking and one nonjudicial punishment (NJP) for violation of the Uniform C ode of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation) . The Applicant tested positive for marijuana, 3 9 ng/ml, NAVDRUGLAB msg 241710Z JUN 02 , and began a period of unauthorized absence from 28 June to 25 July 2002. The Applicant was also investigated for homosexual conduct, admitted in a written statement to having engaged in homosexual conduct, and was processed for Administrative Separation for both H omosexual C onduct and M isconduct - D rug A buse. 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 16 November 1998 . Based on the Article 112a violation , processing for administ rative separation is mandatory. When notified on 31 July 2002 of a dministrative separation processing for H omosexual C onduct and M isconduct - D rug A buse using the administrative board procedure, the Applicant his rights to consult with a qualified coun sel, submit a written statement , and request an administrative board . The Separating Authority chose the primary basis for separation to be M isconduct - D rug Ab use , and the Applicant was discharged Under Other Than Honorable Conditions.

: (Decisional) ( ) . The Applicant contends he was wrongly accused and persecuted due to his sexual predisposition. T he Applicant tested positive for THC during a command urinalysis . Although he claims various kinds of improper procedures during the urinalysis, he provided no statements or evidence showing impropriety. The record of evidence clearly shows the Applicant waived his rights to trial by court-martial and an administrative separation board. If the Applicant felt he was mistakenly charged with a crime, it was his obligation to contest those charges at the time they were made. During a trial or administrative separation board, he would have had the opportunity to mount a defense against the charges. The Applicant submitted no evidence to support his allegations; therefore, the NDRB determined that his discharge was proper and equitable. Further, he was discharged for drug abuse and not homosexual conduct. Relief denied.

: (Decisional) ( ) . The Applicant contends his unit made no attempt to rehabilitate him for his drug abuse. All servicemembers separated for drug abuse are screened for d rug dependency and provided the option of treatment prior to separation if found to be drug dependent . The Applicant was screened by the Alcohol Treatment Facility, Naval Hospital, Camp Lej e une on 30 July 2002. The intent of this treatment is for the benefit of the Applicant after discharge, not to rehabilitate the Applicant for continued service. Violation of Article 112a is a serious offense requiring mandatory processing for administrative separation regardless of grade, performance, 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. 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. Additionally, he was not processed any faster than others who tested positive for an illegal substance. The Applicant was discharged within three months after testing positive, although 30 days of that time the Applicant was in an unauthorized status. Relief denied.

Issue 3: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends that other Marines tested positive for drugs but were rehabilitated and retained. While other members of his unit may have been charged with the same or similar offenses, each case must stand on its own merits. The Commanding Officer is allowed to consider matters for extenuation and mitigation unique to each individual. Therefore no two cases, no matter how similar, are guaranteed to receive the same punishment. Relief denied.

Issue 4: (Decisional) (Propriety) RELIEF NOT WARRANTED. The Applicant contends his command ignored medical’s recommendation that he be administratively separated for Personality Disorder. A review of his records shows that on 9 May 2002, the Applicant was diagnosed by a competent medical authority with Adjustment Disorder with Depressed Mood and Personality Disorder, not otherwise specified, with Antisocial Traits. The Medical Corps officer further recommended continuing with the Applicant’s administrative separation based on unsuitability due to his Personality Disorder. This suggests an earlier diagnosis of a Personality Disorder with a recommendation for administrative separation. However, during his processing, the Applicant tested positive for the wrongful use of marijuana . Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. While he may have been in the process of separating for Personality Disorder, his separation for Misconduct - Drug Abuse took precedence. The NDRB determined that his discharge was proper and equitable. Relief denied.

Issue 5: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends his post-service conduct is worthy of consideration for an upgrade. He submitted statements from a Global War on Terrorism Coordinator and a Readjustment Counseling Therapist at the Bronx Veterans Center and a driving record. The NDRB considers 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. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum , however, completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration. To warrant an upgrade, the Applicant’s post-service efforts need to be more encompassing. T he Board determined that the documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration. The characterization of service received was appropriate. Relief denied.
The Applicant contends that he was awarded a Good Conduct Medal. This is incorrect. The Good Conduct Medal is awarded after a servicemember completes three years of service with no misconduct. During the Applicant’s 2 years, 10 months, and 18 days of service, he was in an unauthorized status for 30 days and was found guilty at NJP for violation of UCMJ Article 92. The misunderstanding likely arose from Block 18 of the DD Form 214, which resets the Good Conduct Medal 3-year time counter after each instance of misconduct. The date of 6 May 2002 in Block 18 corresponds to his NJP.

 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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