Docket No. MD13-00946
, €x-PFC, USMC
CURRENT DISCHARGE AND APPLICANT’S REQUEST
Application Received: 20130314
Characterization of Service Received: (per DD 214) UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge: (per DD 214} MISCONDUCT
Authority for Discharge: (per DD 214) MARCORSEPMAN 6210.5 [DRUGS]

Applicant’s Request: Characterization change to: GENERAL (UNDER HONORABLE CONDITIONS)
Narrative Reason change to: NONE REQUESTED

SUMMARY OF SERVICE

Prior Service:
Inactive: USMCR (DEP) 19970625 - 19980615 COG Active: NONE

Pre-Service Drug Waiver: YES

Period of Service Under Review:
Date of Current Enlistment: 19980616 Age at Enlistment: 17.

Period of Enlistment: 4 Years 4 Months

Date of Discharge: 20010905 Highest Rank: LANCE CORPORAL
Length of Service: 03 Year(s) 02 Month(s) 20 Day(s)

Education Level: 12 AFQT: 55

MOS: 0621

Proficiency/Conduct Marks (# of occasions): 4.2 (8)/3.9 (8) Fitness Reports: NOT APPLICABLE
Awards and Decorations (per DD 214): Pistol SS SSDR

Periods of UA/CONF: NONE

NIP: 1

~ 20010621: Article 112a (Wrongful use, possession, etc. of controlled substances, THC)
Awarded: FOP RIR RIR Suspended: NONE

SCM: NONE SPCM: NONE _CC: NONE
Retention Warning Counseling: 1
~ 20000530: For inappropriate behavior toward an NCO
ADMINISTRATIVE CORRECTIONS TO THE APPLICANT’S DD 214
The NDRB did note administrative error(s) on the original DD Form 214:

Block 4a, Grade, Rate or Rank, should read: “PFC”
Block 4b, Pay Grade, should read: “E-2”

The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.

Key: NFIR - Not found in record RESTR - Restriction NIP - Nonjudicial punishment SCM - Summary court-martial
SPCM - Special court-martial FOP - Forfeiture of pay RIR - Reduction in rank EPD - Extra duties
COME - Confinement CC - Civilian conviction CCU - Correctional Custody Unit CBW - Confinement on bread and water
Docket No. MD13-00946

 

TYPES OF DOCUMENTS SUBMITTED/REVIEWED

Related to Military Service:
DD 214: | Service/Medical Record: Other Records: CI
Related to Post-Service Period:
Employment: CJ Finances: C] Education/Training; 0
Health/Medical Records: ([] Rehabilitation/Treatment: [| Criminal Records: L]
Personal Documentation: [7] Community Service: CJ References: C]
Department of VA letter: [] Other Documentation: [[]
Additional Statements:
From Applicant: O From/To Representation: [_] From/To Congress member: . [J

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 If, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.

Key: NFIR - Not found in record RESTR - Restriction NJP - Nonjudicial punishment SCM - Summary court-martial
SPCM - Special court-martial FOP - Forfeiture of pay RIR - Reduction in rank EPD - Extra duties
CONF - Confinement CC - Civilian conviction CCU - Correctional Custody Unit CBW - Confinement on bread and water
Co
Docket No. MD13-00946

 

 

 

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

APPLICANT'S ISSUES

1. The Applicant contends he is innocent as there was no hard evidence to support the findings.

2. The Applicant contends his discharge was based on an isolated incident in 38 months of service with no other adverse
action.

3. The Applicant contends his post-service conduct is worthy of an upgrade.

DECISION

Date: 20131003 DOCUMENTARY REVIEW Location: WASHINGTON D.C. _ Representation: NONE

By a vote of 5-0 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS.
By a vote of 5-0 the Narrative Reason shall remain 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. 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 Board did complete a thorough review of the circumstances that led to his
discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety. The
Applicant’s record of service included one 6105 counseling warning and one nonjudicial punishment (NJP) for violation of the
Uniform Code of Military Justice (UCMA): Article 112a (Wrongful use, possession, etc. of controlled substances,

| specification). The Applicant also had a pre-service drug waiver prior to entering the Marine Corps, and acknowledged his
complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 24 June 1997. Based on the Article
112a violation, processing for administrative separation is mandatory. When notified of administrative separation processing
using the administrative board procedure, the Applicant waived his rights to consult with a qualified counsel, submit a written
statement, and request an administrative board.

Issue 1: (Decisional) (Propriety) RELIEF NOT WARRANTED. The Applicant contends he is innocent as there was no hard
evidence to support the findings. The record of evidence clearly shows the Applicant waived his rights to trial by court-martial
and an administrative separation beard. 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 a trial or 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.

Issue 2: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends his discharge was based on
an isolated incident in 38 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 Marine Corps 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. 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.

Issue 3: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant suggests his post-service achievements as
evidenced by his college attendance and graduation as well as employment warrant consideration for an upgrade. The NDRB is
authorized to consider post-service factors in the re-characterization of a discharge. However, there is no law, or regulation,
that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian
life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to
exist during the period of enlistment in question. Besides the Applicant’s statement on the DD Form 293, he failed to provide
any documentary evidence on his behalf for post-service consideration. The Applicant could have provided documentation as
Do

  

cket No. MD13-00946

detailed in the Post-Service Conduct paragraph in the Addendum with the recognition that 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. Without post-service

documentary evidence, the Board determined the awarded characterization of service shall remain Under Other Than
Honorable Conditions. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s sunamary of service, service record
entries and discharge process, the Board found the discharge was proper and equitable. Therefore, the awarded characterization
of service shall remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall
remain MISCONDUCT. The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from
the date of his discharge. The Applicant is directed to the Addendum for additional information,
I TECTCSCON Oe

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Cocke No. MD13-00946

ADDENDUM: Information for the Applicant

Complaint Procedures: Vf 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

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 Tequest for a waiver can be submitted during the processing of a formal application for reenlistment
through a recruiter.

Automatic Upgrades - There is no law ot 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,

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
conmmmunity or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks,

dssues 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 Appiicant’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 jurisdictionat 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