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USMC | DRB | 2012_Marine | MD1201377

Original file (MD1201377.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20120606

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)       20070922 - 20071014     Active:

Period of Service Under Review:
Date of Current Enlistment: 20071015     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20110804      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 20 D a y ( s )
Education Level:        AFQT: 36
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

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

Periods of UA / CONF :

NJP:

- 20090619 :      Article (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer)
         Awarded: Suspended:

- 201 0 1108 :      Article (Assault)
         Awarded: Suspended:

- 20110201 :      Article (Failure to obey order or regulation - To wit: SPICE and BATH SALTS)
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling:

- 20090119 :      For violation of Article 92, UCMJ. SNM failed to comply with numerous lawful orders given by the Company First Sergeant and Platoon Sergeant to settle indebtedness to a civilian organization.

- 20090324 :       For violations of Article 91 (Insubordinate c onduct), UCMJ. On two separate occasions over the last month, SNM was belligerent and condescending in his conduct toward n oncommissioned officers. SNM has also demonstrated a cavalier attitude toward counsel in regards to his deficiencies.

- 20101027 :      For violating Article 92, Failure to obey order or regulation, by violating MCO 5100.19E Marine Corps Traffic Safety Program, by operating a motor vehicle 10 mph over the posted speed limit. SNM has been counseled before on exceeding the posted speed limit. This indicates a severe lack of judgment, common sense, and specifically , a failure to follow instruction given to you by proper authority. It is also prejudicial to good order and discipline.

- 20110201 :      For violation of Art 92 of the UCMJ. Specifically , you were hospitalized because of your use of Spice and Bath Salts.

- 20110201 :      For establishing a pattern of misconduct.

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 called into his First Sergeant’s office on a report of domestic violence that he did not commit, and even though his Company Gunnery Sergeant investigated the allegation and said he was innocent, his nonjudicial punishment (NJP) resulted in a court-martial.

Decision

Date: 20 1 3 0410 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 NJPs for violations o f the Uniform Code of Military Justice (UCMJ): Article ( Insubordinate conduct toward a warrant officer, noncommissioned officer, or petty officer, 1 specification), Article ( Failure to obey order or regulation , ), and Article ( Assault , ) . The Applicant did not require a pre-service drug waiver to enter the Marine Corps . However, on 21 September 2007, he acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs. Based on violating the Marine Corps drug policy, processing for administ rative separation is mandatory . When notified of a dministrative separation processing for Misconduct (Drug Abuse) and Misconduct (Pattern of Misconduct) , the Applicant rights to consult with a qualified coun sel, submit a written statement , and request an administrative board . The Applicant was subsequently discharged Under Other Than Honorable Conditions for Misconduct (Drug Abuse).

: (Decisional) ( ) . The Applicant contends he was called into his First Sergeant’s office on a report of domestic violence that he did not commit, and even though his Company Gunnery Sergeant investigated the allegation and said he was innocent, his NJP resulted in a court-martial. After reviewing the Applicant’s records, the NDRB determined that he never went to a court-martial for domestic violence, although he was found guilty of violating UCMJ Article 128 (Assault) at NJP for “striking [Applicant’s wife] in the face with his fist and threatening to kill her.” This violation, however, did not lead to his administrative separation processing. Rather, three months after this incident, he went to his third NJP in his enlistment and was found guilty of violating UCMJ Article 92 (Failure to obey order or regulation) for using Spice and Bath Salts, both of which violate the Marine Corps drug policy and warrant mandatory administrative separation processing. Drug abuse typically results in an unfavorable characterization of service or , at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a S pecial or Ge neral C ourt- M artial. The Applicant violated Article 92 of the UCMJ when he wrongfully used the synthetic substances Spice and Bath Salts. However, his command did not pursue a punitive discharge at a court-martial but opted instead for the more lenient administrative discharge. The NDRB found the characterization of the Applicant ’ s discharge was proper and equitable for Misconduct (Drug Abuse) and determined that relief based on this issue was 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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USMC | DRB | 2012_Marine | MD1201377

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