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USMC | DRB | 2012_Marine | MD1201705
Original file (MD1201705.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20120806
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)       20000913 - 20010708     Active:            20010709 - 20050315
                                             20050316 - 20100412

Pre-Service Drug Waiver:

Period of Service Under Review:
 Date of Current Enlistment: 20100413     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20110411      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 29 D a y ( s )
Education Level:        AFQT: 42
MOS: 2311
Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle (2) Pistol (2) (4) MM CoC GWOTSM ICM

Periods of UA / CONF :

NJP:

- 20100818 :      Article (Failure to obey order or regulation , 3 specifications )
         Specification 1: Failed to report his DWI to his chain of command
         Specification 2: Continued to operate his personally owned vehicle when he knew his license was revoked and still remains revoked
         Specification 3: Physically operating a vehicle after consuming alcohol
         Article (Drunken or reckless operation of vehicle, aircraft, or vessel)
         Awarded: Suspended: 1 MONTH

- 20101221 :      Article (Failure to obey order or regulation - willingly contributed to using Spice knowingly that it is prohibited in the Marine Corps per order MFCO 5355.1 )
         Article 95 (Resistance, flight, breach of arrest, and escape - resisted arrest by NC police officer for using S pice)
         Awarded: Suspended:

SCM:     SPCM:    CC: NFIR






Retention Warning Counseling:

- 20100825 :      For your unacceptable behavior that resulted in a reduction in rank during NJP. Your Martial Arts Belt Rank was reviewed/assessed and was determined not to be commensurate with your reduced rank and you do not have the ability to meet the standards to hold a MCMAP Brown Belt. You are hereby notified that your MCMAP Brown Belt is revoked and is reduced to Tan Belt.

- 20101221 :       For violation of Article s 92 and 95. Specifically, you were under the influence of Spice and resisted arrest by the Havelock Police Department. This conduct is unbecoming of a Marine within our Corps and this unit. This is unacceptable behavior and conduct of this nature will not be tolerated.

Administrative Corrections to the Applicant’s DD 214

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

          “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 010709 UNTIL 100412”
          “ 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:                  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 seeks an upgrade to qualify for employment opportunities.
2.       The Applicant contends his discharge was improper , because the DWI charges w ere dropped.
3.       The Applicant contends the drug abuse misconduct was unsubstantiated.

Decision

Date: 20 1 3 0522            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 sta ndards of equity and propriety. The Applicant’s record of service included 6105 counseling warnings and for o f the Uniform Code of Military Justice (UCMJ): Article ( Failure to obey order or regulation , ), Article 95 ( Resistance, flight, breach of arrest, and escape , ), and Article ( Drunken or reckless operation of vehicle, aircraft, or vessel , ) . The Applicant acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 11 September 2000 . Based on the violation of the Marine Corps zero-tolerance drug policy, 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 seeks an upgrade to qualify for employment 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.
: (Decisional) ( ) . The Applicant contends his discharge was improper , because the DWI c harges w ere dropped. The dismissal of the Applicant’s civilian DWI charges have no bearing on the Applicant’s discharge for Misconduct (Drug Abuse) after he was found guilty at NJP for using Spice. Additionally, the Applicant signed a pre-trial agreement on 20 D ecember 2010 in which he agreed to forego his right to an administrative hearing board to avoid charges being referred to a Special Court - Martial. The NDRB determined his discharge was proper. Relief denied.
: (Decisional) ( ) . The Applicant contends the drug abuse misconduct was unsubstantiated. Although the Applicant was never convicted by civil authorities for drug misconduct, he was found guilty at NJP for violating UCMJ Article 92 in that he failed to obey an order or regulation by using Spice, which is a violation of the Marine Corps zero-tolerance drug policy. A civil conviction is not necessary to be found guilty of violating the drug policy. His commanding officer found by a preponderance of the evidence that he used Spice and properly processed him for administrative separation. The Applicant received an Honorable discharge for his first two enlistments from July 2001 to April 2010. Each period of enlistment is an independent obligation and characterization is determined for that specific period of time.
 In his third enlistment, however, he received two retention warnings and was found guilty at two NJPs of violating numerous serious UCMJ articles. The NDRB determined his discharge was proper and equitable. 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 15 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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