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USMC | DRB | 2013_Marine | MD1300567
Original file (MD1300567.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20130204
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to: Expiration of T erm of S ervice (ETS)

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       20071016 - 20071104     Active:  

Pre-Service Drug Waiver:

Period of Service Under Review:
Date of Current Enlistment: 20071105     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20111104      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 00 D a y ( s )
Education Level:        AFQT: 71
MOS: 2146
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:

- 20110317 :       Article (Failure to obey order or regulation, on or about 20101201, violate a lawful order by being in possession of a prohibited substance, S pice)
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20101206 :       For violation of Article 92 , failure to obey an order or regulation by illegal use of a controlled substance, S pice on 20101130.

- 20110119 :       For violation of Article 92, failure to obey an order or regulation. On 20110107, you violated your Class C liberty outline by traveling to the Marine Corps Exchange without an escort, without signing out, or informing your mentor of your liberty plan.

- 20110307 :       For violation of Article 92. On 20110303, while on Class B liberty, failed to report your location and check out with your mentor prior to seeing your lawyer off base, without permission from your chain of command.

- 20110320 :       For violation of Article 92 of the UCMJ, specifically in that I violated MARFORCOM order 5355.1 by being in possession of a controlled substance, S pice.


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 any Department of Defense drug policy prior to 01 March 2011 is invalid since it violates Executive Order 11727 , which appoints the Attorney General as the sole authority on drug policy.
2.       The Applicant contends his company commander committed an act of libel in his recommendation for administrative separation letter.
3 .       The Applicant contends his company commander has no credibility to make a character statement when he cannot properly address the charges or his rank.

Decision

Date: 20 1 3 0724            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 6105 counseling warnings and for o f the Uniform Code of Military Justice (UCMJ): Article (Failure to obey order or regulation, on or about 20101201, violate a lawful order by being in possess ion of a prohibited substance, S pice) . 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 9 O ctober 2007 . Based on the drug policy 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 and submit a written statement , but exercised his right to request an administrative board . The administrative board voted 3-0 that the preponderance of the evidence supported that the Applicant had committed M isconduct (Drug Abuse) and recommended separation Under Other Than Honorable Conditions. The Separation Authority concurred with the board’s recommendations and ordered the Applicant to be discharged Under Other Than Honorable Conditions for Misconduct (Drug Abuse).

: (Decisional) ( ) . The Applicant contends any Department of Defense drug policy prior to 01 March 2011 is invalid since it violates Executive Order 11727 , which appoints the Attorney General as the sole authority on drug policy. The NDRB determined the Department of Defense policies and orders that pertained t o the possession and/or use of S pice by its servicemembers were not in violation of Executive Order 11727. Further, the NDRB determined that Executive Order 11727 does not prohibit the Department of Defense from setting policy and issuing orders to maintain good order and discipline among its servicemembers. The service record clearly shows the Applicant waived his right to trial by court-martial and accepted NJP , w h ere he was found guilty of violating an order or regulation ( Article 92 ) . In addition, the Applicant’s administrative board voted 3-0 that the preponderance of the evidence supported that the Applicant had committed misconduct and warranted separation. The NDRB discerned no impropriety or inequity and the Applicant’s separation for misconduct was appropriate. Relief denied.

: (Decisional) ( ) . The Applicant contends his company commander committed an act of libel in his recommendation for administrative separation letter. The Applicant specifically states that he was charged with and received NJP for possession of S pice and was never charged with smoking S pice as his company commander stated. The service record clearly shows the Applicant received NJP for possession of S pice. However, the record also shows the Applicant received 6105 counseling warnings for both the use and the possession of S pice. The Applicant signed the 6105 counseling warnings and initialed that he chose not to make rebuttal statements. Therefore, the NDRB determined the Applicant wrongfully used S pice and his contention is without merit. Relief denied.


: (Decisional) ( ) . The Applicant contends his company commander has no credibility to make a character statement when he cannot properly address the charges or his rank. As described in Issue 2, the record clearly shows the Applicant wrongfully used and possessed S pice , which is a violation of the Marine Corps drug policy and warrants mandatory administrative separation processing. Further, the NDRB determined the company commander addressing the Applicant as a Private First Class vice a Lance Corporal did not materially affect the separation process. Therefore, after reviewing the Applicant’s issues, supporting documents , and the evidence of record, the NDRB determined the Applicant’s discharge 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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