Search Decisions

Decision Text

USMC | DRB | 2013_Marine | MD1300304
Original file (MD1300304.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)       20040324 - 20040330     Active:  

Pre-Service Drug Waiver:

Period of Service Under Review:
Date of Current Enlistment: 20040331     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20060 4 04      H ighest Rank:
Length of Service : Y ea rs M on ths 04 D a ys
Education Level:        AFQT: 40
MOS: 0621
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle



NJP:

- 20051017 :       Article (Absence without leave 1800-2005, 20051011)
         Article (Failure to obey order or regulation, leaving local liberty limits on 20051009)
         Awarded: Suspended:
SCM:

- 20060206 :       Art icle ( Wrongful use, possession, etc. of controlled substances , Cocaine as evidenced by NAVDRUGLAB msg dated 24 October 2005 )
         Sentence :

SPCM:

CC:

Retention Warning Counseling :

- 20050124 :       For you do not meet the height and weight standards according to this order. Your current height, weight and body fat are 71 inches, 205 pounds and 23% body fat. Your maximum weight is 197 pounds and you are 8 pounds over the maximum allowable weight for your height . Your current PFT is 3 rd class. You are 5% over the maximum allowable body fat.



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 seeks an upgrade in order improve employment opportunities and to qualify for the G.I. Bill.
2.       The Applicant contends his discharge is inequitable because it was based on one isolated incident in 25 months of service with no other adverse action.
3.       The Applicant contends his discharge is inequitable because he was ill-advised by his defense attorney to plead guilty during his summary court-martial.
4.       The Applicant contends his discharge is inequitable because he was threatened and hazed by a staff sergeant into pleading guilty at summary court-martial.
5.       The Applicant contends his positive urinalysis is invalid due to impropriety by the command.
        
Decision

 Date: 20 1 3 0719            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 ( Unauthorized absence) and Article ( Failure to obey order or regulation) ; and for of the UCMJ: Article ( Wrongful use, possession, etc. of controlled substances, Cocaine ). The Applicant a pre-service drug waiver for using marijuana prior to entering the Marine Corps . 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 request an administrative board .

: (Nondecisional) The Applicant seeks an upgrade in order improve employment opportunities and to qualify for the G.I. Bill. 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 con tends his discharge is inequitable because it was based on one isolated incident in 25 months of service with no other adverse action. Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, 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. In addition to the Applicant’s NJP for violation of Articles 86 and 92, he was found guilty by summary court-martial of violating Article 112a. However, his command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances. Relief denied.

: (Decisional) ( ) . The Applicant contends his discharge is inequitable because he was ill-advised by his defense attorney to plead guilty during his summary court-martial. The record of evidence clearly shows the Applicant plead guilty to Article 112a at summary court-martial and waived his right to an administrative separation board. If the Applicant felt he was mistakenly charged with a crime, it was his obligation to contest those charges at the time they were made. During his summary court-martial and administrative separation board, he would have had the opportunity to mount a defense against the charges. The Applicant submitted no evidence to support his contention; therefore, the NDRB must rely upon the presumption of regularity in the conduct of Government affairs. Relief denied.

4 : (Decisional) ( ) . The Applicant contends his discharge is inequitable because he was threatened and hazed by a staff sergeant into pleading guilty at summary court-martial. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was coerced by hazing to plead guilty at summary court-martial. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. Relief denied.

5 : (Decisional) ( ) . The Applicant contends his positive urinalysis is invalid due to impropriety by the command. In the applicant’s estimation, his positive urinalysis was improper ly obtained because he was one of only two Marines tested. The Applicant contends he was wrongfully administered a drug urinalysis after being in an unauthorized absence status for only 15 minutes. The Applicant’s record of service shows he was found guilty of violating UCMJ, Article 86 (absence without leave, 1800-2005 on 11 October 2005 ). In accordance with SECNAVINST 5300.28 C , the Applicant’s command acted appropriat ely and with proper authority when administering the Applicant’s drug urinalysis . 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

Similar Decisions

  • USMC | DRB | 2009_Marine | MD0900288

    Original file (MD0900288.rtf) Auto-classification: Denied

    By a vote of the Narrative Reason shall WEIGHT CONTROL FAILURE.Discussion :().The Applicant contends after 12 plus years of decorated and faithful service, he believes his discharge, due to weight control, does not rate a “General (Under Honorable Conditions)” and his misconduct was due to mitigating circumstances (family issues). The Board determined the characterization of service received, “General (Under Honorable Conditions)”, was an appropriate characterization considering the length...

  • NAVY | DRB | 2011_Navy | ND1101594

    Original file (ND1101594.rtf) Auto-classification: Denied

    Representation: 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. 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...

  • USMC | DRB | 2012_Marine | MD1200248

    Original file (MD1200248.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. Paragraph 6215, WEIGHT...

  • USMC | DRB | 2014_Marine | MD1401441

    Original file (MD1401441.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 remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain MISCONDUCT. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the...

  • USMC | DRB | 2010_Marine | MD1002167

    Original file (MD1002167.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1. The Applicant contends he should have received an Honorable characterization of service since he was separated for his weight, not misconduct. ” 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.

  • USMC | DRB | 2014_Marine | MD1401049

    Original file (MD1401049.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive:USMCR (DEP)19970711 - 19971107Active: Period of Service Under Review: Date of Current Enlistment: 19971108Age at Enlistment: Period of Enlistment: Years MonthsDate of Discharge:20000225Highest Rank:Length of Service: Year(s)Month(s)18 Day(s)Education Level: AFQT:56MOS: 0151Proficiency/Conduct Marks (# of occasions):Fitness Reports: Awards and Decorations (per DD...

  • USMC | DRB | 2009_Marine | MD0901646

    Original file (MD0901646.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 .The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. ” Additional Reviews : After a document review has been conducted, former members are...

  • USMC | DRB | 2013_Marine | MD1300895

    Original file (MD1300895.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/ToCongress member: Pertinent Regulation/Law A. Paragraph 6210, MISCONDUCT of...

  • USMC | DRB | 2009_Marine | MD0902571

    Original file (MD0902571.rtf) Auto-classification: Denied

    Decisional issue: (Equity) Applicant contends that his discharge characterization of service was inequitable in that he was wrongfully separated as a weight control failure. The Separation Authority (Commanding General, 2nd Force Service Support Group) reviewed the two different bases of separation (Misconduct (Pattern of Misconduct) and Weight Control Failure) and directed the Applicant’s separation for Weight Control Failure with a characterization of service as Under Honorable Conditions...

  • USMC | DRB | 2013_Marine | MD1300907

    Original file (MD1300907.rtf) Auto-classification: Denied

    The 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.Based on the Applicant’s lack of progress in the Body Composition Program, command administratively processed for separation. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal...