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USMC | DRB | 2013_Marine | MD1300568
Original file (MD1300568.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20130124
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to: UNSATISFACTORY PERFORMANCE OR SECRETARIAL                                                 AUTHORITY

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       20080329 - 20080421     Active:  

Pre-Service Drug Waiver:

Period of Service Under Review:
Date of Current Enlistment: 20080422     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20110401      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 10 D a y ( s )
Education Level:        AFQT: 59
MOS: 0231
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle ACM

Periods of UA / CONF : Specifics not found in record

NJP:

- 2009110 5 :       Article (Absence without leave, between the dates of 20090601 and 20091020 without authority failed to go at the time prescribed to her a ppointed place of duty on multiple occasions )
         Awarded: Suspended:

- 20100422 :      Article ( Failure to obey o rder or regulation , specifically, MARFORCOM Order 5355.1: using substances that adversely affect good order and discipline, mission readiness, and health of service members )
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20091105 :       For being found guilty at group level NJP of UCMJ Article 86 (Unauthorized a bsence)

- 20100422 :       For wrongfully consuming a prohibited substance, specifically herbal incense






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 to improve her employment opportunities.
2.       The Applicant seeks to have her RE-code changed and be reinstated as a Lance Corporal.
3.       The Applicant seeks to be reimbursed for monies and uniforms as a result of her N onjudicial Punishments (N JPs ) and to be awarded a Good Conduct Medal.
 4.       The Applicant contends her misconduct was minor isolated incidents.
5.       The Applicant contends her medical issue led to her misconduct.
6.       The Applicant contends her work hours led to her misconduct.
7.       The Applicant contends she was coerced and intimidated into signing the NJP and advised to not request an attorney.
 8.       The Applicant contends her O fficer-in-Charge (OIC) fabricated the amount of contact he had with her during the separation process.
 9 .       The Applicant contends she did not know Spice was illegal.
10 .      The Applicant contends she thought she was smoking flavored tobacco.
1 1 .      The Applicant contends there is no evidence that Flawless and Spice are similar.
1 2 .      The Applicant contends her post-service conduct warrants an upgrade.

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 governmental affairs 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 (Absence without leave, fail ure to go to appointed place of duty on multiple occasions) and Article (Failure to obey order or regulation , specifically, MARFORCOM Order 5355.1: using substances that adversely affect good order and discipline, mission readiness, and health of service members) . The Applicant a pre-service drug waiver for using illicit drugs pri or to entering the Marine Corps. acknowledged complete understanding of the Marine Corps Policy Concerning Ille gal Use of Drugs i n March 2008 . Based on the drug policy violation, processing for administrative separation is mandatory. When notified of administrative separation processing using the procedure, the Applicant rights to consult wi th a qualified counse l and request an administrative board . The Applicant was notified of separation proceedings for Pattern of Misconduct and Drug Abuse. The administrative board determined the preponderance of the evidence supported the allegation that the Applicant had committed misconduct through a Pattern of Misconduct and Drug Abuse . Further, t he administrative board recommended a suspended separation with a characterization of Under Other Than Honorable Conditions. The Separati on Authority did not suspend the separation and separated the Applicant Under Other Than Honorable Conditions for Misconduct (Drug Abuse).

 : (Nondecisional) The Applicant seeks to improve her employment 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.






: (Nondecisional) The Applicant seeks to have her RE-code changed and be reinstated as a Lance Corporal. 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 B oard for Correction of Naval Records (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. Finally, the NDRB does not have the authority to reinstate the Applicant to a previous rank. Only the BCNR can do this via the submission of a DD Form 149.

: (Nondecisional) The Applicant seeks to be reimbursed for monies and uniforms as a result of her NJPs and awarded a Good Conduct Medal. T he NDRB ’s review is limited to the standards of equity and propriety of the discharge and has no jurisdiction to reimburse Applicants or award m edals. The Applicant did not meet the requirements to be awarded a Good Conduct Medal, which requires three consecutive years of active duty service without misconduct. During the Applicant’s 2 years, 11 months, and 10 days of service, she was found guilty of two UCMJ violations at two NJPs.

4 : (Decisional) ( ) . The Applicant contends her misconduct was minor isolated incidents. Certain serious offenses warrant separation from the service to maintain proper order and discipline. Violation of the drug policy 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 command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge after t he guilty finding of violating UCMJ Article 92 at NJP . Relief denied.
5: (Decisional) ( ) . The Applicant contends her medical issue led to her misconduct. When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline. However, the NDRB does not consider the circumstances surrounding the Applicant’s stated condition or diagnosis to be of sufficient nature to excuse the Applicant’s misconduct. Relief denied.

6: (Decisional) ( ) . The Applicant contends her work hours led to her misconduct. The record of evidence clearly shows the Applicant waived her rights to trial by court-martial. If the Applicant felt there were mitigating circumstances to her misconduct, it was her obligation to contest those charges at the time they were made. During a trial, she would have had the opportunity to mount a defense against the charges. Further, the Applicant was afforded an administrative board where she had an opportunity to bring forth any mitigating circumstances. The administrative board determined the preponderance of the evidence supported the allegation that the Applicant had committed misconduct through a Pattern of Misconduct and Drug Abuse . The evidence submitted by the Applicant to support h er contention does not refute the presumption of regularity in the conduct of Government affairs , and the NDRB determined her work hours did not mitigate or excuse her misconduct . Relief denied.
Issues 7 -8 : (Decisional) ( ) . The Applicant contends she was coerced and intimidated into signing the NJP and advised to not request an attorney. The Applicant further contends her OIC fabricated the amount of contact he had with her during the separation process. The record contained no evidence of any wrongdoing by the Applicant’s command. The NDRB presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. The NDRB discerned no impropriety or inequity in the Applicant’s disciplinary or separation proceedings. Relief denied.

Issues 9 -11 : (Decisional) ( ) . The Applicant contends she did not know Spice was illegal and thought she was smoking flavored tobacco. The Applicant further contends there is no evidence that Flawless and Spice are similar. The record of evidence clearly shows the Applicant waived her rights to trial by court-martial.
If the Applicant felt she was mistakenly charged with a crime, it was her obligation to contest those charges at the time they were made. During a trial , s he would have had the opportunity to mount a defense against the charges. Further, the Applicant was afforded an administrative board where she h ad an opportunity to bring forth any evidence or mitigating circumstances. The administrative board determined the preponderance of the evidence supported the allegation that the Applicant had committed misconduct through a Pattern of Misconduct and Drug Abuse . The evidence submitted by the Applicant to support h er contention does not refute the presumption of regularity in the conduct of Government affairs and provides no grounds for relief . Relief denied.


1 2 : (Decisional) ( ) . The Applicant contends her post-service conduct warrants an upgrade. The NDRB considers 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. The Applicant provided personal statement s , a personal resume, college transcripts , track and field documentation , and two character references. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum , however, completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration. The Board determined the documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration. The characterization of service received was appropriate considering the length of service and UCMJ violations. 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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