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USMC | DRB | 2012_Marine | MD1201221
Original file (MD1201221.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20120507
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)       20050630 - 20051211     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20051212     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20090918      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 07 D a y ( s )
Education Level:        AFQT: 67
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

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

Periods of UA / CONF :

NJP:

- 20080801 :      Article (Drunken or reckless operation of a vehicle, aircraft, or vessel)
         Awarded: Suspended:

- 20090317 :      Article (Wrongful use, possession, etc. of controlled substances, to wit: STEROIDS)
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling:

- 20080731 :      For a DUI on 20080520.

Administrative Corrections to the Applicant’s DD 214

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

          “ ”
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:                  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 contends he was assured his discharge would be upgraded to Honorable after six months.
2 .       The Applicant contends his discharge was inequitable , because it was based on a biased and unjust punishment, inconsistent and unequal punishment throughout the battalion, and a misleading discharge process.
3.       The Applicant contends he was assured he would be retained.

Decision

 Date: 20 1 3 0221            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 warning and non-judicial punishments for violations o f the Uniform Code of Military Justice (UCMJ): Article ( Drunken or reckless operation of a vehicle, 1 specification) and Article ( Wrongful use, possession, etc. of controlled substance , steroids, 1 specification). The Applicant a pre-service drug waiver for using marijuana prior to entering the Marine Corps . Based on the Article 112a violation , processing for administ rative separation is mandatory . When notified of a dministrative separation processing using the administrative board procedure , the Applicant rights to consult with a qualified coun sel, submit a written statement , and request an administrative board .

: ( Non-d ecisional) The Applicant contends he was assured his discharge would be upgraded to Honorable after six months . There is no law, or regulation, that authorizes a discharge to be automatically upgraded after six months. The NDRB does not automatically upgrade a discharge after six months.

: (Decisional) ( ) . The Applicant contends his discharge was inequitable , because it was based on a biased and unjust punishment, inconsistent and unequal punishment throughout the battalion, and a misleading discharge process. The Applicant was found guilty at NJP of violating UCMJ Article 112a and all awarded punishment was suspended. Violation of UCMJ Article 112a, however, requires mandatory administrative separation processing as it is a violation of the Marine Corps drug policy. Administrative discharge processing is a separate and distinct process from punitive proceedings such as NJP. Furthermore, administrative discharge processing is administrative in nature and not considered a form of punishment. 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 met the requirements for administrative separation for Misconduct (Pattern of Misconduct) and Misconduct (Drug Abuse), that separation from the Naval Service was appropriate, and that a n Under Other Than Honorable Conditions discharge was warranted. The NDRB reviewed the documentation surrounding the discharge process in the Applicant’s case and found that he was afforded all rights and due process. If he felt he was mistakenly charged or being unequally punished, he could have elected to appear before an administrative separation board to plead his case for retention or a more favorable discharge characterization. However, he elected not to exercise that right and was properly and equitably discharged. After a complete review of the records, the Applicant’s statement, and statements from three former fellow Marines, the NDRB determined his discharge was warranted for Misconduct (Pattern of Misconduct) and Misconduct (Drug Abuse), his Under Other Than Honorable Conditions characterization was completely in line with what other Marines received for similar misconduct, and his discharge proceedings were proper and clearly presented . Relief denied.


: (Decisional) ( ) . The Applicant contends he was assured he would be retained . Despite a service member’s prior record of service, violation of UCMJ Article 112a requires mandatory processing for administrative separation. The Separation Authority makes the final decision as to whether or not to retain a service member after he has been notified of administrative separation proceedings. In the Applicant’s case, the Separation Authority was Commanding General, 2nd Marine Division, who, after reviewing the facts of the case, the Applicant’s service record, the Applicant’s misconduct during his enlistment, and the recommendations of his battalion and regimental commanders who both recommended separation Under Other Than Honorable Conditions, determined the Applicant met the requirements for separation due to Misconduct (Pattern of Misconduct) and Misconduct (Drug Abuse) and ordered the Applicant to be separated Under Other Than Honorable Conditions with the primary basis of separation to be Misconduct (Drug Abuse). Personnel other than the Separation Authority did not have the authority to promise or assure the Applicant that he would be retained. 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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