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USMC | DRB | 2012_Marine | MD1200285
Original file (MD1200285.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20111116
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)       20080708 - 20090628     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20090629     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20110222      H ighest Rank:
Length of Service : Y ea r M on ths 24 D a ys
Education Level:        AFQT: 42
MOS: 2111
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

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

Periods of UA / CONF :

NJP:

- 20101007 :       Article (Failure to obey order or regulation , possession of S pice )
         Awarded: Suspended:

SCM:     SPCM:    CC:      Retention Warning Counseling :

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 did not know S pice was prohibited as it is sold in stores on base.
2.       The Applicant contends he was informed that he would be retained by his CO , but his CO still recommended separation.
3.       The Applicant contends that his discharge is unfair due to double jeopardy.
 4.       The Applicant contends other servicemembers were punished less harshly for similar or more severe misconduct .
5 .       The Applicant contends he was not given a second chance .
 6 .       The Applicant contends he may have received a more severe sentence and was discharged due to his Muslim and Turkish heritage.

Decision

 Date: 20 1 2 1004            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. The Applicant’s record of service included for o f the Uniform Code of Military Justice (UCMJ): Article ( Failure to obey orde r or regulation, possession of S pice ). The Applicant a pre-service drug waiver for illicit drug use prior to entering the Marine Corps . acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 5 J uly 2008 . Based on the drug abuse 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 .

: (Decisional) ( ) . The Applicant contends he did not know S pice was prohibited as it is sold in stores on base. The Applicant provided no evidence that Spice has ever been sold at an y military exchange or commissary onboard a military installation. Although Spice is a legal substance, Marines are prohibited from using any legal or illegal substance for the purpose of getting high. At the Applicant’s NJP, he was found to have had knowledge of the lawful order written in Secretary of the Navy Instruction 5 300 . 28D, dated 5 December 2005, which says not to use or posses any type of drug or drug paraphernalia for the purpose of getting high , an order which it was his duty to obey . The Applicant was found guilty of wrongfully having Spice within his belongings found during a Criminal Investigation D ivision investigation. Relief denied.

: (Decisional) ( ) . The Applicant contends he was informed that he would be retained by his CO , but his CO still recommended separation. The Applicant’s CO did not have the authority to promise a characterization of service at discharge nor was he the final decision authority. The CO’s recommendation for separation is just that, a recommendation. The Separation Authority determines whether the allegations in the notification of the basis for separation are substantiated by the evidence. There is no provisional guarantee that a Marine will receive anything that a local commanding officer recommends. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was wrongfully discharged. Proper procedures were followed, and the Separation Authority, who makes the final determination, properly and equitably discharged the Applicant Under Other Than Honorable Conditions. Relief denied.

: (Decisional) ( ) . The Applicant contends his discharge is unfair due to double jeopardy in that he served his punishment from NJP but was then discharged . Administrative discharge processing is a separate and distinct process from punitive proceedings such as NJP or court-martial. Furthermore, administrative discharge processing is administrative in nature and not considered a form of punishment. The Applicant was found guilty at NJP, was

punished, and then in a separate decision it was determined that he was no longer fit to serve as a Marine. As such, the Applicant’s contention that he was punished twice for the same misconduct is erroneous. Based upon the evidence of record, the NDRB found no improprieties or inequities in the Applicant’s discharge processing. Relief denied.

4: (Decisional) ( ) . The Applicant contends other servicemembers were punished less harshly for similar or more severe misconduct. The NDRB reviews the propriety and 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. Based upon available records, nothing indicates that the Applicant’s discharge 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 a serious offense, that separation from the Naval Service was appropriate, and that an Under Other Than Honorable Conditions discharge was warranted. Relief denied.

5: (Decisional) ( ) . The Applicant contends he was not given a second chance. Certain serious offenses , even though isolated, warrant separation from the service to maintain proper order and discipline. Violation of the Marine Corps Drug Policy is one such offense requiring mandatory processing for administrative separation regardless of grade or time in service. The Marine Corps has a zero-tolerance policy for violation of the drug policy, and discharge processing is mandatory for the first offense. 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 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.

6 : (Decisional) ( ) . The Applicant contends he may have received a more severe sentence and was discharged due to his Muslim and Turkish heritage. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he received a more severe punishment and discharge due to his religious or ethnic background . The Applicant violated the Marine Corps Drug Policy, was found guilty at NJP, was punished, and then faced mandatory discharge processing that resulted in a proper and fair Under Other Than Honorable Conditions characterization of service. His punishment was no more severe than what others receive for the same misconduct. 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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