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USMC | DRB | 2013_Marine | MD1300004
Original file (MD1300004.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20120927
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)       20070831 - 20071028     Active:  

Pre-Service Drug Waiver:

Period of Service Under Review:
 Date of Current Enlistment: 20071029     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 201207 06      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 13 D a y ( s )
Education Level:        AFQT: 49
MOS: 5811
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle Pistol

NJP:              SPCM:             CC:     

SCM:

- 20111207 :      Article (Absence without leave)
         Article (Failure to obey order or regulation , 3 specifications [Details extracted from Notification for Disposition dated 20111107.]
         Specification 1: Wrongfully possessing S pice
         Specification 2: Wrongfully smoking S pice
         Specification 3: Wrongfully using a controlled substance a nalogue with intent to induce intoxication, excitement , or stupefaction of the central nervous system
         Article (False official statements)
          Article (Wrongful use, possession, etc. of controlled substances, to wit: marijuana)
         Sentence: CONF (20111207-20111230, 24 days)

- 20120106 :      Article (Wrongful use, possession, etc. of controlled substances , to wit: marijuana)
         Sentence: (20120106-20120129 , 24 days)

Retention Warning Counseling:

- 20120124:      For violation and being found guilty at NJP of violations of Articles 86, 92x3, 107, and 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:                  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 and medical benefits .
2.       The Applicant contends his punishment was too harsh for the offenses, his two courts-martial could have been combined into one, and he thought he would be represented by counsel at his first court-martial.
3.       The Applicant contends his misconduct was mitigated by personal problems.
 4.       The Applicant contends his misconduct was in a short period after 57 months of honorable service and with only 3 months left on his 5 year enlistment.
Decision

 Date: 20 1 3 0613            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. Th e 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 one 6105 retention warning counseling and for of the UCMJ: Article ( Absence without leave, ), Article (Failure to obey order or regulation, ), Article (False official statement, ), and Article (Wrongful use, possession, etc. of controlled substances, ). The Applicant acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 30 August 2007 . 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 right to consult with a qualified coun sel but waived his rights to submit a written statement and , as the result of a pretrial disposition agreement , waived his right to appear before an administrative separation board .

: (Nondecisional) The Applicant seeks an upgrade to qualify for employment opportunities and medical benefits . The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities or gaining access to medical benefits from the Department of Veterans Affairs, which determines eligibility for post-service benefits. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.
: (Decisional) ( ) . The Applicant contends his punishment was too harsh, his two courts-martial could have been combined into one, and he thought he would be represented by counsel at his first court-martial. After a complete review of the Applicant’s record, the NDRB determined he was provided full due process and all applicable rights, including access to counsel. His punishment was completely in line with what others received for similar misconduct and was not too harsh. T he Applicant’s record reflects that he agreed to waive his administrative separation board to avoid a Special Court-Martial, which could have led to a punitive discharge (i.e., Bad Conduct Discharge). The NDRB determined his command treated him leniently by opting for an administrative discharge. Relief denied.
: (Decisional) ( ) . The Applicant contends his misconduct was mitigated by personal problems. The Applicant contends he warrants an upgrade, because he suffered a lot of setbacks due to marital problems. The NDRB recognizes that serving in the military is challenging. Most service members, however, serve honorably and therefore earn their Honorable or General discharges. In fairness to those service members, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. There is no evidence in the record, nor did the Applicant provide any documentation, to indicate he attempted to use the numerous services available for service members who undergo personal problems during their enlistment s , such as the Navy Chaplain, Medical or Mental Health professionals, Navy Relief Society, Family Advocacy Programs, or even the Red Cross. The NDRB determined the Applicant’s personal problems were not mitigating factors in his misconduct. Relief denied.
Issue 4: (Decisional) ( ) . The Applicant contends his misconduct was in a short period after 57 months of honorable service and with only 3 months left on his 5 year enlistment. During the Applicant’s 57 months of service, he received a retention warning and was found guilty of numerous serious UCMJ violations at two Summary Courts-Martial. He met the requirements for administrative separation for Misconduct (Drug Abuse), Misconduct (Serious Offense), and Misconduct (Pattern of Misconduct). Despite these violations, his command leniently opted to administratively separate him instead of referring charges to a Special Court-Martial. The Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation. The characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation. Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition. Based on the Applicant’s record of service, and despite letters from his parents, including his combat-decorated and wounded veteran father, the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service, and the awarded characterization of service was warranted , 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 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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