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USMC | DRB | 2013_Marine | MD1300337
Original file (MD1300337.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20121206
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)       20061017 - 20061226     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20061227     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20091112      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 16 D a y ( s )
Education Level:        AFQT: 44
MOS: 7212
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:

- 20090202 :      Article (Wrongful use, possession, etc. of controlled substances , NAVDRUGLAB msg dtd 20090127, marijuana 4 0 ng/ml )
         Awarded : Susp ended:

SCM:     SPCM:    CC:      Retention Warning Counseling :

Administrative Corrections to the Applicant’s DD 214

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

          “ ”

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:                  Oth er Documentation:    
                  Additional Statements :
          From Applicant:            From /To Representation:            From /To Congress m ember :        


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

 1.       The Applicant accuses his command of wrongdoing and poor treatment and contends his command created a hostile environment toward him.
2.       The Applicant contends that pain from sutures left in his ankle after surgery and subsequent depression from not deploying and being treated poorly led to his misconduct.
 3 .       The Applicant contends another Marine was not discharged for the same misconduct.

Decision

Date: 20 1 2 1212            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 Applicant’s record of service included for o f the Uniform Code of Military Justice (UCMJ): Article (Wrongful use, possession, etc. of controlled substances, NAVDRUGLAB msg dtd 20090127, marijuana 40 ng/ml ) . 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 16 October 2006 . Based on the Article 112a violation , processing for administ rative separation is mandatory. T he Applicant was originally notified of separation proceedings in March 2009 but due to administrative errors, he was re-notified on 2 0 June 2009 with the c ommanding o fficer ’s recommendations and the Applicant ’s rights. When notified of a dministrative separation processing on 2 0 June 2009 using the procedure, the Applicant rights to consult with a qualified coun sel, submit a written statement , and request an administrative board . The voted 3-0 to recommend to separate the Applicant with a cha r acterization of service as Under Other Than Honorable Conditions due to Misconduct ( D rug A buse ) .

: (Decisional) ( ) . The Applicant accuses his command of wrongdoing and poor treatment and contends his command created a hostile environment toward him. The record contained no evidence of any wrongdoing by the Applicant’s chain of command, nor does his record show any attempt by him to request mast or otherwise elevate his concerns to the proper authority. Additionally, the Applicant provided no documentation or statements from fellow Marines to support his contentions. A review of the Applicant’s records, however, does reveal that he tested positive for marijuana in January 2009 and was found guilty of violation of UCMJ Article 112a (Wrongful use, possession, etc. of controlled substances, marijuana) at NJP on 2 February 2009. The Applicant was then referred to the Substance Abuse Counseling Center for evaluation on 2 February 2009 where the initial impression was that dependency for cannabis and alcohol did exist. The Applicant was then referred for further evaluation on 5 February 2009, resulting in a diagnosis of Drug Abuse. On 6 February 2009, t he Applicant was assigned to the Intensive Outpatient Treatment Program. In addition, he was assigned to the Military Drug Awareness Course on 10 February 2009. He completed the treatment and aftercare plan on 03 March 2009. Based on the Article 112a violation, processing for administrative separation is mandatory , and the Applicant’s command originally notified him of separation proceedings in March 2009. However, due to administrative errors, he was re-notified on 20 June 2009 with the commanding officer’s recommendations and the Applicant’s rights. T he Applicant rights to consult with a qualified counsel, submit a written statement , and request an administrative board. Subsequent to substance abuse treatment and while awaiting his administrative separation board, the Applicant tested positive for a second time (NAVDRUGLAB msg dtd 20090701, marijuana 30 ng/ml). Per a Commanding Officer, Marine Air Control Group 28 letter dated 04 Aug 2009, the Applicant was being referred to a Special Court-Martial for the second violation and was considered a rehabilitation treatment failure. The record is not clear as to why the Applicant was never referred to a Special Court-Martial. Instead, he appeared before an administrative separation board on 21 September 2009, which voted 3-0 to recommend to separate the Applicant with a cha r acterization of service as Under Other Than Honorable Conditions due to

Misconduct (D rug A buse ) . During the Applicant’s administrative separation board, he would have had the opportunity to provide mitigating evidence against the charges to include the allegations of wrongdoing and mistreatment that he made on his DD Form 293. The Separation Authority (Commanding General, 2d Marine Aircraft Wing) approved the board’s recommendations and separated the Applicant Under Other Than Honorable Conditions for Misconduct (Drug Abuse). After a complete review of the Applicant’s records (including a 24 June 2009 Letter of Rebuttal from the Applicant to CG, 2d MAW), his contentions in his DD Form 293 statement, and his separation proceedings, the NDRB determined the Applicant was properly notified of separation proceedings for drug abuse and was afforded all rights pursuant to that process. Further, the NDRB determined he was properly and equitably discharged Under Other Than Honorable Conditions due to Misconduct (Drug Abuse). Relief denied.

: (Decisional) ( ) . The Applicant contends that pain from sutures left in his ankle after surgery and subsequent depression from not deploying and being treated poorly led to his misconduct. The NDRB recognizes the negative feelings associated with his inability to deploy and from the complications of his surgery. However, there were multiple legal venues with which to cope with his feelings of depression , such as medical and mental health professionals, chaplains, and Fleet and Family Support Centers. Turning to the use of illegal drugs is not an acceptable choice and warrants mandatory separation processing from the Marine Corps. During the Applicant’s administrative separation board, he would have had the opportunity to provide mitigating circumstances to include medical and chain-of-command issues. The NDRB determined the Applicant’s feelings of depression from his medical issues, inability to deploy, and difficulties with his chain of command d o not mitigate his multiple instances of willful , serious misconduct. Relief denied.

: (Decisional) ( ) . The Applicant contends another Marine was not discharged for the same misconduct. 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. The Applicant had two separate positive urinalys es for the use of marijuana. His command contemplated referring the second use to a Special Court-Martial that could have resulted in confinement and a punitive discharge (i.e., Bad Conduct Discharge), however, they ultimately decided on the more lenient administrative separation process. Based upon available records and after reviewing the Applicant’s statements , 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 supports the conclusion that the Applicant committed multiple s erious offense s, that there were no mitigating circumstances, that separation from the Marine Corps was appropriate, and that an Under Other Than Honorable Conditions discharge was 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.

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 .




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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