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USMC | DRB | 2013_Marine | MD1300026
Original file (MD1300026.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20121126
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)       20070531 - 20070715     Active:  

Pre-Service Drug Waiver:

Period of Service Under Review:
Date of Current Enlistment: 20070716     Age at Enlistment:
Period of E nlistment : Years M onth
Date of Discharge: 20110715      H ighest Rank:
Length of Service : Y ea rs M on ths 00 D a y
Education Level:        AFQT: 68
MOS: 3521
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle CoC

Periods of UA / CONF :

NJP:

- 20090923 :      Article (Provoking speeches or gestures, in that SNM did on or about 20090911 provoke SGT _ by calling him a “Spic . ”
         Awarded : Susp ended:

- 20110603 :      Article (Failure to obey order or regulation, to wit: SNM wrongfully possessed drug paraphernalia)
         Article (Wrongful use, possession, etc. of controlled substances , 2 specifications )
         Specification 1: Wrongful possession of a controlled substance.
         Specification 2: Wrongful use of a controlled substance.
         Awarded : Susp ended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20080721 :       For disrespecting and willfully disobeying a superior commissioned officer. Specifically , on 20080714, SNM was corrected by the Commanding Officer, Marine Corps Base Hawaii for parking in a N o P arking zone. When asked how long I would be parked in the N o P arking area , I responded with , “ A s long as it takes. ” I was then directed to move the vehicle to a parking stall in which I did not until my passen ger returned.

- 20110603 :       For your Battalion level NJP for violations of Art icle 112a , 2 specifications , and Article 92.


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 :        

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 self-medicated with Spice to aid in sleeping and relieving pain from a shoulder injury.
2.       The Applicant contends he did not receive due process, and his discharge was too harsh.

Decision

 Date: 20 1 3 0620            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 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, for o f the Uniform Code of Military Justice (UCMJ): Article ( Failure to obe y order or regulation, to wit: SNM wrongfully possessed drug paraphernalia , ), Article ( Wrongful use, possession, etc. of controlled substances , : Wrongful possession of a controlled substance and Wrongful use of a controlled substance ), and Article ( Provoking speeches or gestures, in that SNM did on or about 20090911 provoke SGT _ by calling him a “Spic , ” ) . 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 25 M ay 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 rights to consult with a qualified coun sel, submit a written statement , and request an administrative board .

: (Decisional) ( ) . The Applicant contends he self-medicated with Spice to aid in sleeping and relieving pain from a shoulder injury. Despite a servicemember’s prior record of service, certain serious offenses warrant separation from the to maintain proper order and discipline. Violation of Article 112a is one such offense requiring mandatory processing for administrative separation regardless of grade, performance, or time in service. This 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. The Applicant was found guilty of violation of Article 112a. However, his command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. Though the Applicant may feel that his perceived lack of medical treatment for his shoulder injury was the underlying cause of his misconduct, the record reflects willful misconduct that demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

Issue 2: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends he did not receive due process, and his discharge was too harsh. The Applicant contends he was told that since he was so close to the end of his enlistment, he would probably receive light punishment and be allowed to continue until the end of his enlistment, which was just a few months away. He contends that he was then called in and asked to re - sign paperwork due to an earlier typo and to fast track his case since he was so close to getting out. He contends that he lost his right to legal counsel when he signed the new paperwork, and he was misled into signing the paperwork that he did not fully understand. A review of the Applicant’s records shows that his commanding officer was going to refer charges to a Special Court-Martial for the Article 112a violations, which could have resulted in a punitive discharge (i.e., Bad Conduct), confinement, reduction in rank, and forfeiture of pay. However, instead of referring charges to a Special Court-Martial, the Applicant’s commanding officer offered a Fast Track Disposition of the Article 112a Allegations on 31 May 2011 to the Applicant, whereby the Applicant was allowed the choice to


have his case adjudicated at the more lenient NJP if he agreed to waive an administrative separation board in exchange for the commanding officer dropping the referral of charges to a punitive Special Court-Martial. In this written notification of 31 May 2011, the commanding officer recommended that the Applicant speak to legal counsel before he made his decision. The Applicant selected, in writing, the option to be considered for NJP and the waiving of his administrative separation board in exchange for not going to a Special Court-Martial . He then wrote, “SNM DID NOT DESIRE TO SEE A DEFENSE LAWYE R” and signed the notification. After a complete review of the records, the NDRB determined he received full due process and all applicable rights, was not lied to or deceived, was encouraged to see a lawyer, and was given lenient treatment by his command, who offered an administrative discharge instead of the felony conviction that could have resulted from a Special Court-Martial. The NDRB determined his discharge was warranted, proper, and equitable, and his discharge was completely in line with what others received for similar misconduct. 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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