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USMC | DRB | 2012_Marine | MD1201592
Original file (MD1201592.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20120720
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)       20030311 - 20030904     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20030905     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070423      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 19 D a y ( s )
Education Level:        AFQT: 62
MOS: 1391
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

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

Periods of UA :

NJP:     SPCM:    CC:

SCM:

- 200702 02 :      Article (False official statement)
         Article (Wrongful use of controlled substances, cocaine , 1053 ng/ml )
          Sentence: (20070202-20070225, 24 days)

Retention Warning Counseling:

- 20041104 :      For violation of A rticle 92 , F ailure to obey an order or regulation

- 20050113 :       For violation of A rticle 92 and 91 by driving POV aboard MCAS Beaufort while driving privileges were revoked

- 20061005 :      For illegal drug involvement, specifically cocaine usage identified through NAVDRUGLAB msg

- 20070202 :      For violation of A rticle s 107 and 112a (recent Summary Court - Martial)







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 wants her discharge upgraded so s he can reenlist in the military.
2.       The Applicant wants h er discharge upgraded to improve her opportunity to be employed as a firefighter.
3.       The Applicant contends that the discharge was inequitable based upon the military’s current and prior decisions of equity.
4.       The Applicant contends her characterization of service is punitive in nature and is therefore, inequitable .
 5 .       The Applicant contends the punishment far exceeds the offense.
 6.       The Applicant contends there was no consideration for mitigating circumstances or for the quality of service , both of which far outweighed the offense.
Decision

 Date: 20 1 2 0 821            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 warnings and summary court-martial for o f the Uniform Code of Military Justice (UCMJ): Article ( False official statement , ) and Article ( Wrongful use of controlled substances - cocaine/1053 ng/ml , ) . The Applicant did not require a pre-service drug waiver for using illicit drugs prior to entering the Marine Corps . Sh e acknowledged h er complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs and the zero-tolerance policy on 25 F ebruary 2003 . Based on the Article 112a violation , processing for administ rative separation is mandatory . When notified of a dministrative separation , the Applicant rights to consult with a qualified coun sel and request an administrative board . Sh e exercised h er right to submit a written statement. The Applicant was discharged from the Marine Corps on 23 April 2007 Under Other Than Honorable Conditions for Misconduct (Drug Abuse).

: (Non - decisional) The Applicant wants h er discharge upgraded so s he can reenlist in the military . The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. Furthermore, since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, it is not authorized to change a Reentry (RE) code. Only the Board for Correction of Naval Records can make changes to RE codes. Neither a less than fully honorable discharge nor an unfavorable RE code is, in itself, a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge.

: (Non-decisional) The Applicant wants h er discharge upgraded to improve h er opportunity to be employed as a firefighter . The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

: (Decisional) ( ) . The Applicant contend s that the discharge was inequitable based upon the military’s current and prior decisions of equity. 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 , especially her plea and finding of guilty at summary court-martial proceedings, supports the conclusion that the Applicant deliberately and wrongfully used cocaine and made a false official statement about its use. Relief denied.

Issue 4: (Decisional) ( ) . The Applicant contends her characterization of service is punitive in nature and is therefore, inequitable. A discharge under other than honorable conditions is administrative in nature and can only be assigned through the administrative separation process. Administrative separation is considered more lenient than a punitive discharge. The only p unitive discharges are a Bad Conduct Discharge and a Dishonorable Discharge , which can only be awarded as part of a sentence by a special or general court-martial. Per Appendix 12 of the Manual for Courts-Martial, violation of UCMJ Articles 107 (False official statement) and 112a (Wrongful use of controlled substances) are considered to be serious offenses and can result in a punitive discharge as the result of a special or general court-martial. The Applicant’s command decided to separate her for Misconduct (Drug Abuse) through the more lenient administrative process. C onsidering the offense s committed by the Applicant, the NDRB concluded that the discharge was proper and the characterization of service was equitable. Relief denied.

Issue 5: (Decisional) ( ) . The Applicant contends the punishment far exceeds the offense. T he Applicant violated Article 107 and Article 112a of the UCMJ, which normally results in an unfavorable characterization of service when discharged administratively or in a Bad Conduct Discharge as the result of a special or general court-martial. The Applicant violated Article 112a when she tested positive for cocaine and then lied about the use when questioned . For this offense, she received a level of punishment that can be awarded at a summary court-martial. However, the NDRB does not review the equity of punishments awarded at courts-martial or at NJP proceedings. The NDRB only reviews the propriety and equity of the discharge process. Considering the Applicant’s two combat deployments, length of service, quality of service, and misconduct, her administrative separation Under Other Than Honorable Conditions for Misconduct (Drug Abuse) is completely in line with what others with similar records and with similar misconduct received. She was not treated inequitably nor does the level of separation exceed the offenses. Relief denied.

 Issue 6 : (Decisional) ( ) . The Applicant contends that there was no consideration for mitigating circumstances or for the quality of service , both of which far outweighed the offense. Despite a servicemember’s prior record of service, certain serious offenses , even if isolated, warrant separation from the Marine Corps to maintain proper order and discipline. Violation of Article 112a is one such offense that requires mandatory processing for separation regardless of personal circumstances, combat deployments, grade, performance, or time in service. Wrongfully using controlled substances 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. Considering the command did not pursue a punitive discharge , the NDRB is convinced that it is more likely than not that her command considered her quality of service as well as mitigating circumstances . The military offers numerous services to members experiencing personal, family, and marriage difficulties. Instead, the Applicant willingly used a controlled and illegal substance. Her discharge Under Other Than Honorable Conditions is no harsher than others with the same service and misconduct. The NDRB concluded that relief based on this issue is 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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