Upgrade.Vet

USMC | DRB | 2013_Marine | MD1300372

Original file (MD1300372.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20121207

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)       20060726 - 20061106     Active:

Period of Service Under Review:
Date of Current Enlistment: 20061107     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20120306      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 00 D a y ( s )
Education Level:        AFQT: 83
MOS: 0341/ 8152
Proficiency/Conduct M arks (# of occasions): ( 13 ) / ( 14 )        Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle Pistol LoA (2) MM

NJP:

- 20110211 :      Article (Wrongful use, possession, etc. of controlled substances , PRESCRIPTION DRUGS )
         Awarded: Suspended:
SCM:

- 20100414 :       Art icle (Absence without leave 20091213-20100308, 85 days )
         Sentence :

SPCM:    CC:

Retention Warning Counseling :

- 20090409 :       For not being at your appointed place of duty, the 3D FAST compound at 0800 on 20090409 in order to participate in a headquart ers gas chamber qualification.

- 20090901 :       For unsatisfactory performance, unsatisfactory physical conditioning, failure of com bat fitness test on 20090831.

- 20110211 :       For violation of the UCMJ Article 112a, was found in his room under the influence of his prescription medication. He then made a verbal statement that he knowingly ingested more than the prescrib ed amount to feel the effects.

- 20111202 :       For pattern of misconduct (wrongful use of prescription drug and UA).

- 20120128 :       For violation of the UCMJ , specifically: Article 112a (Drug Abuse). MCO 5300.17, wrongful use of prescribed or over - the - counter drug or pharmaceuticals. In that you did, on or about 20120121 on board Camp Horno, Camp Pendleton , were found on the roof of Bldg 53450 after taking 9 Dramamine , which is an over - the -counter drug.

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. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present.

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 wants an upgrade to be eligible for Department of Veterans Affairs (VA) benefits.
2.       The Applicant contends his discharge was based on misconduct that occurred a year before his administrative separation.
3.       The Applicant contends he was administratively separated on the day of his completion of required active service.

Decision

Date : 20 1 3 0829          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, for o f the Uniform Code of Military Justice (UCMJ): Article 112a ( Wrongful use, possession, etc. of controlled substances , 1 specification of misusing prescription medication) , and for of the UCMJ: Article 86 (Absence without leave , 85 days). Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of a dministrative separation processing for a Pattern of Misconduct using the procedure, the Applicant waived right to consult with a qualified counsel, but submit ted a written statement and request ed an administrative board . An administrative board was convened on 17 February 2012 and found that a preponderance of the evidence supported a Pattern of Misconduct and recommended the Applicant be separated Under Other Than Honorable Conditions. A minority report was filed as an enclosure to the administrative board’s decision.

: (Nondecisional) The Applicant wants to be eligible for VA benefits. There is no requirement, or law, that grants re-characterization solely on the issue of facilitating access to VA benefits. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities or employment opportunities. Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge. As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.

: (Decisional) ( ) . The Applicant contends his discharge was based on misconduct that occurred a year before his administrative separation. There is no statute of limitations on administrative separation for a pattern of misconduct except that the misconduct that forms the basis for the separation must have occurred within the same enlistment period as the separation proceedings. Per Marine Corps Separation and Retirement Manual paragraph 6210.3, the Applicant met the requirements for administrative separation for a Pattern of Misconduct. The NDRB determined the discharge was proper and equitable as issued. Relief denied.

: (Decisional) ( ) . The Applicant contends he was administratively separated on the day of his completion of required active service. The Applicant’s record indicates that he was diagnosed with anxiety disorder by a Navy psychiatrist and was recommended for administrative separation . However, the Applicant’s command chose to pursue an administrative discharge for misconduct , which is not improper as separations for misconduct take precedence over separations for medical reasons . However, t he minority report enclosed as part of the Applicant’s Administrative Separation B oard ’s decision casts some doubt about the timing of the command’s initiation of misconduct separation proceedings being delayed until the Applicant was recommended for a medical discharge. During the Applicant’s five years of service, his average P roficiency and C onduct marks were 3.6 and 3.4, respectively, which fall well below the Marine Corps requirements for Honorable service. After a complete review of the records, t he NDRB determined an upgrade to General (Under Honorable Conditions) was warranted. Partial relief granted. Full relief to Honorable was not granted because of the Applicant’s below-average Conduct marks over his enlistment.

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 but 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

NAVY | DRB | 2010_Navy | ND1001216

Original file (ND1001216.rtf) Auto-classification: 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 . ” 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...
USMC | DRB | 2011_Marine | MD1100947

Original file (MD1100947.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1.The Applicant seeks an upgrade for service benefits.2. 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...
USMC | DRB | 2009_Marine | MD0901319

Original file (MD0901319.rtf) Auto-classification: Denied

By a vote of the Narrative Reason shall COMMISSION OF A SERIOUS OFFENSE.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. ” 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...
NAVY | DRB | 2012_Navy | ND1201490

Original file (ND1201490.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: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD...
USMC | DRB | 2014_Marine | MD1400016

Original file (MD1400016.rtf) Auto-classification: Denied

The Applicant was not recommended for retention and was involuntarily discharged at the end of his obligated service with an Honorable characterization of service. 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 NON-RETENTION ON ACTIVE DUTY.The Applicant...
NAVY | DRB | 2015_Navy | ND1500169

Original file (ND1500169.rtf) Auto-classification: 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 (SERIOUS OFFENSE). ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the...
USMC | DRB | 2009_Marine | MD0901282

Original file (MD0901282.rtf) Auto-classification: Denied

Representation: By a vote of the Characterization shall .By a vote of the Narrative Reason shall MISCONDUCT.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. Relief is not warrantedAfter a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record, Discharge Process and evidence submitted...
USMC | DRB | 2010_Marine | MD1002067

Original file (MD1002067.rtf) Auto-classification: Denied

The Applicant was recommended for administrative separation based on dual reasons for separation: (1) Misconduct (Pattern of Misconduct) due to having established a pattern of misconduct while in his enlistment; and, (2) Misconduct (Drug Abuse) due to his violation of the Secretary of the Navy Instruction regarding Drugs and Alcohol as evidenced by the Summary Court Martial conviction for aiding, abetting, and procuring the commission of another Marine in the wrongful use of prescription...
USMC | DRB | 2010_Marine | MD1001526

Original file (MD1001526.rtf) Auto-classification: Denied

He was separated from the Marine Corps on 3 Apr 2009 with an Under Other Than Honorable Conditions discharge due to Misconduct (Drugs). Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries and the administrative separation 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...
USMC | DRB | 2015_Marine | MD1501027

Original file (MD1501027.rtf) Auto-classification: Denied

Applicant’s Request: Characterization change to: Narrative Reason change to: Summary of ServicePrior Service: Inactive: USMCR (DEP) 20071101 - 20080803 Active: Period of Service Under Review: Date of Current Enlistment: 20080804 Age at Enlistment: Period of Enlistment: Years Months Date of Discharge: 20120803 Highest Rank: Length of Service: Year(s) Month(s) 00 Day(s) Education Level: AFQT: 42 MOS: 1371 Proficiency/Conduct Marks (# of occasions): Fitness Reports: Summary: After a thorough...

Search Decisions

Decision Text

USMC | DRB | 2013_Marine | MD1300372

Similar Decisions