Search Decisions

Decision Text

USMC | DRB | 2012_Marine | MD1201474
Original file (MD1201474.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20120628
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to: FAILURE TO ADAPT

Summary of Service
Prior Service:
Inactive:         USMCR (DEP)       20050422 - 20050911     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20050912     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20090403      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 23 D a y ( s )
Education Level:        AFQT: 36
MOS: 3051
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

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

NJP:

- 20090115 :      Article (Wrongful use, possession, etc. of controlled substances , THC 19 ng/ml )
         Awarded : Susp ended:

SCM:

- 20080212 :       Art icle (Absence without leave , 2 specifications )
         Specification 1: 20071011-20071030
         Specification 2: 20071121-20071219
          Sentence :

SPCM:    CC:

Retention Warning Counseling :

- 20090116 :       For recent Battalion level NJP for A rticle 112a. Wrongful use, possession, etc, of controlled substances. On 20080115, you were charged and found guilty of violating Article 112a.

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 :        


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

 1.       The Applicant wants to be eligible for medical benefits.
2.       The Applicant contends he was fraudulently enlisted without a high school diploma or a General Educational Development (GED) certificate.
3.       The Applicant contends he was manipulated and treate d unfairly .

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. T he Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included 6105 counseling warning, for o f the Uniform Code of Military Justice (UCMJ): Article ( Wrongful use, possession, etc. of controlled substances , of marijuana ) , and for of the UCMJ: Article ( Absence without leave , of 19 days, and 28 days ). 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 21 A pril 2005 . Based on the Article 112a 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 .

: (Nondecisional) The Applicant wants to be eligible for medical benefits. There is no requirement, or law, that grants re-characterization solely on the issue of facilitating access to VA benefits. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing medical, educational , or employment opportunities. Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge. As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.
: (Decisional) ( ) . The Applicant contends he was fraudulently enlisted without a high school diploma or GED certificate. The Applicant’s enlistment records indicate that on 29 August 2005, he was 1.5 credit hours short of the 22 credit hours he needed to graduate from high school, and he was enrolled to complete 6.5 credit hours during the rest of the scholastic year. The Applicant began active service in the Marine Corps on 12 September 2005 and most likely did not complete enough credit hours to graduate from high school. However, for the purposes of enlistment, he met graduation requirements as evidenced by his education enlistment code of 12J. A high school diploma or GED can also be waived for entry into the armed forces. E ven if the Applicant could show misrepresentations in the recruitment process, such misrepresentations would neither amount to a justification nor to a defense for the Applicant’s own misconduct. The Applicant had a marijuana waiver on entry into the Marine Corps and signed the Marine Corps zero - tolerance drug policy statement. He had served for over three years in the Marine Corps and was fully aware of the consequences of his misconduct. As an active duty service member, he was subject to the UC MJ until his separation. Therefore, the NDRB determined his misconduct was willful , and he warranted the Under Other Than Honorable Conditions discharge. Relief denied.

Issue 3: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends he was manipulated and treated unfairly. As discussed in Issue 2, he was appropriately enlisted into the U.S. Marine Corps, who fully knew he had no high school degree or GED certificate and waived that requirement. Less than three years into the Applicant’s enlistment, he was found guilty at a Summary Court-Martial of violating UCMJ Article 86 for being UA for 19 days and 28 days. Since

neither period of UA was greater than 30 days, he did not commit a serious offense and so did not warrant administrative separation processing. The Applicant was properly retained in the Marine Corps to continue his service. Eleven months after his Summary Court-Martial, the Applicant was found guilty of violating UCMJ Article 112a for smoking marijuana, which requires mandatory processing for separation. His command could have referred charges to a Special Court-Martial that could have resulted in a Bad Conduct Discharge, however, they chose to go the more lenient route of administratively separating him. When notified of administrative separation processing using the procedure, the Applicant rights to consult with a qualified counsel, submit a written statement , and request an administrative board. If he felt he had been manipulated or treated unfairly, he could have appeared before an administrative separation board to plead his case for retention or a more favorable discharge. However, he waived that right and accepted his Under Other Than Honorable Conditions discharge. After a complete review of the records and the Applicant’s statement, the NDRB determined he was properly enlisted into the Marine Corps, was treated fairly, was not manipulated, was afforded all of his rights, and was properly and equitably discharged Under Other Than Honorable Conditions for Misconduct (Drug Abuse). 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.

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 .


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

Similar Decisions

  • USMC | DRB | 2010_Marine | MD1000095

    Original file (MD1000095.rtf) Auto-classification: Denied

    By a vote of 3 to 0, the administrative separation board found a factual basis for misconduct, drug abuse, and recommended the Applicant be discharged from the Naval Service by reason of misconduct, drug abuse, receive an Under Other Than Honorable Conditions characterization of service, his discharge should not be suspended, and he should not be retained in the Individual Ready Reserve.Issue 1: (Nondecisional) The Applicant wants to reenlist in the Army. Regulations limit the NDRB’s review...

  • USMC | DRB | 2008_Marine | MD0801164

    Original file (MD0801164.rtf) Auto-classification: Denied

    The Applicant’s medical records document he was given the opportunity to see a counselor whenever he asked and there is no documented evidence he was denied medical treatment as claimed. ” Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the date of discharge. A request for a waiver can be submitted during the processing of a formal application for...

  • USMC | DRB | 2008_Marine | MD0801063

    Original file (MD0801063.rtf) Auto-classification: Denied

    In light of the positive aspects of the Marine’s service record the command did not pursue a punitive discharge; an under other than honorable conditions discharge may seem to be harsh to the Applicant however, it is within the standards of Naval discipline and most violators with cocaine use receive punitive discharges. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record, Discharge Process and evidence submitted by the Applicant, the...

  • USMC | DRB | 2010_Marine | MD1002155

    Original file (MD1002155.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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.Marine Corps Separation...

  • USMC | DRB | 2009_Marine | MD0901507

    Original file (MD0901507.rtf) Auto-classification: Denied

    After the Applicant’s NJP for drug abuse, he was processed for separation. ” 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. 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...

  • USMC | DRB | 2009_Marine | MD0901499

    Original file (MD0901499.rtf) Auto-classification: Denied

    The Applicant also had a pre-service drug waiver for using marijuana prior to entering the Marine Corps, and acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 1 November 2006.Based on the Article 112a offenses committed, processing for administrative separation was mandatory.When processed for administrative separation, the Applicant waived rights to consult with qualified counsel, submit a written statement and request an administrative...

  • USMC | DRB | 2008_Marine | MD0801057

    Original file (MD0801057.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1. The Applicant should be aware 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 mitigates the reason for the characterization of discharge. After a thorough review of the available evidence, to include the Applicant’s Summary of...

  • USMC | DRB | 2012_Marine | MD1200656

    Original file (MD1200656.rtf) Auto-classification: Denied

    ” On 7 April 2011, the Separation Authority (Commanding General, 3d Marine Logistics Group), after reviewing the Applicant’s entire record of service, the facts and circumstances surrounding his misconduct, and the potential for further service directed that the Applicant be administratively separated from the Marine Corps with an Under Other Than Honorable Conditions discharge due to Misconduct-Drug Abuse.The Applicant was discharged as directed on 28 May 2011.: (Nondecisional) The...

  • NAVY | DRB | 2013_Navy | ND1300038

    Original file (ND1300038.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. ” 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. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

  • USMC | DRB | 2010_Marine | MD1000253

    Original file (MD1000253.rtf) Auto-classification: Denied

    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 . ” 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...