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USMC | DRB | 2012_Marine | MD1200349
Original file (MD1200349.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20111129
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)       19980910 - 19981214     Active:   19981215 - 20030324 HON
                                    20030325 - 20061207 HON

Period of Service Under Review:
Date of Current Enlistment: 20061208     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20110318      H ighest Rank:
Length of Service : Y ea rs M on ths 10 D a ys
Education Level:        AFQT: 42
MOS: 0369
Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (2 ) Pistol (3) (2) (3) (3) KDSM (5) MUC (2) CoC (5) LoA (3) MM

Period of CONF :

NJP:     SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20090807 :       For illegal use of a controlled substance. On or about 20090331, your urine specimen was positively identified by the Navy Drug Laboratory as containing trace amounts of cocaine.

- 20091021 :       For unauthorized absence from a scheduled appointment. At 0730, on 20091021 you missed a scheduled appointment at the Family Advocacy Office.

Administrative Corrections to the Applicant’s DD 214

The NDR B did note administrative error s on the original DD Form 214:

          “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 981215 UNTIL 061207 ”
         “ MISCONDUCT ”
        
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.       The Applicant c ontends he should have been medically separated.
 2 .       The Applicant contends he was never found guilty or committed any crime punishable under the UCMJ.
 3 .       The Applicant implies his command is under investigation for similar discharges (i.e., separating Marines with General (Under Honorable Conditions) discharges) .
 4 .       The Applicant contends h is post-service conduct is worthy of consideration .

Decision

 Date: 20 1 2 1018            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 6105 counseling warnings and no misconduct resulting in nonjudicial punishment or court-martial. However, the Applicant tested positive for 109 ng/ml of the cocaine metabolite benzoylecgonine and 92 ng/ml of benzoylecgonine on the retest per the Navy Drug Screening Laboratory letter dated 29 June 2009. The Applicant also had a pre-service drug waiver for using marijuana 70 times and using LSD 4 times prior to entering the Marine Corps . The Applicant acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 05 September 1998 . Based on the Uniform Code of Military Justice (UCMJ) Article 112a (Wrongful possession, use of a controlled substance) violation , processing for administ rative separation is mandatory. When notified of a dministrative separation processing using the procedure, the Applicant exercised rights to consult with a qualified counsel and request an administrative board. The administrative separation board voted unanimously that the Applicant had committed Misconduct (Drug Abuse) but recommended that the Applicant be retained in the Marine Corps . However, t he Applicant’s chain of command recommended the Applicant be separated with a characterization of General (Under Honorable Conditions) . The Se paration A uthority (Assistant Secretary of the Navy , Manpower & Reserve Affairs) approved the recommendation to separate the Applicant due to M isconduct (Drug Abuse) with a characterization of General (Under Honorable Conditions).

: ( D ecisional) (Propriety) RELIEF NOT WARRANTED. The Applicant c ontends he should have been medically separated. 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, 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 B oard for Correction of Naval Records can grant this type of narrative reason change.
: (Decisional) ( ) . The Applicant contends he was never found guilty or committed any crime punishable under the UCMJ. The Applicant claims there was insufficient evidence , and the charges from his court-martial were dropped. The Applicant further states that he did not knowingly or willingly ingest cocaine or create misconduct on his part. In accordance with the Marine Corps Separation and Retirement Manual, servicemembers may be separated based on the commission of a serious military or civilian offense when the commanding officer believes the specific circumstances of the offense warrant separation and the offense would warrant a punitive discharge if adjudicated at trial by court-martial for the same or closely related offense. Commission of a serious offense does not require adjudication by nonjudicial or judicial proceedings or civilian conviction, however, the offense must be substantiated by a preponderance of the

evidence. The positive drug test for a metabolite of cocaine provided the preponderance of the evidence that the Applicant violated UCMJ Article 112a . The Applicant was provided the opportunity to present his case before an administrative board , which voted unanimously that the Applicant had committed Misconduct (Drug Abuse). Although the board recommended he be retained, it was not their decision to retain him. Ultimately, the Separation Authority decided to discharge the Applicant. The Applicant submitted no new evidence to support h is contention that he did not knowingly or willingly ingest cocaine . Relief denied.

: (Decisional) ( ) . The Applicant implie s his command is under investigation for similar separations (i.e., separating Marines with General (Under Honorable Conditions) discharges . 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. On the contrary, it is unusual that a Staff Sergeant only received a General characterization of service, as most Marines who conduct drug abuse receive an Under Other Than Honorable Conditions discharge. A preponderance of the evidence reviewed supports the conclusion that the Applicant committed misconduct (drug abuse), that separation from the Naval Service was appropriate, and that a General (Under Honorable Conditions) discharge was warranted.
4: (Decisional) ( ) . The Applicant contends his post-service conduct is worthy of consideration. 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 provided a personal statement of b eing a volunteer with the local fire department, paying child support , and raising two children, and being the owner of his business. The Applicant also provided supporting documentation referencing his business. 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. The 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 considering the length of service and UCMJ violation. 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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