_ mo Docket No. MD13-00952
ey

ex-Pvt, USMC

CURRENT DISCHARGE AND APPLICANT’S REQUEST

Application Received: 20130319

Characterization of Service Received: (corrected) 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: HONORABLE OR GENERAL (UNDER HONORABLE CONDITIONS)
Narrative Reason change to: NONE REQUESTED -

SUMMARY OF SERVICE

Prior Service:
Inactive: USMCR (DEP) 20081201 - 20081214 COG Active: NONE

Pre-Service Drug Waiver: YES

Period of Service Under Review:
Date of Current Enlistment: 20081215 Age at Enlistment: 19

Period of Enlistment: 4 Years 0 Months

Date of Discharge: 20091019 Highest Rank: PRIVATE FIRST CLASS
Length of Service: 00 Year(s) 10 Month(s) 05 Day(s)

Education Level: 12 AFOT: 38

MOS: 3051

Proficiency/Conduct Marks (# of occasions): 4.1 (3) /3.4 (3) Fitness Reports: NOT APPLICABLE
Awards and Decorations (per DD 214): Rifle SS GWOTSM NDSM

Periods of UA/CONF: NONE

NIP: 1

- 20090630: Article 112a (Wrongful use, possession, etc. of controlled substances, MDMA 645 ng/ml)
Awarded: RIR FOP RESTR EPD Suspended: NONE

SCM: NONE SPCM: NONE CC: NONE
Retention Warning Counseling: 1

- 20090630: For wrongful use, possession, etc., of controlled substances.

NDRB Documentary Review Conducted (date): 20110428
NDRB Documentary Review Docket Number: MD10-01363
NDRB Documentary Review Findings: Proper as issued and thatno change is warranted.

ADMINISTRATIVE CORRECTIONS TO THE APPLICANT’S DD 214
The NDRB did note administrative error(s) on the original DD Form 214:

Block 24, Character of Service, should read: “UNDER OTHER THAN HONORABLE CONDITIONS”
Block 29, Dates of Time Lost During This Period, should read “(5) 20090624-20090629”

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
CONF - Confinement CC - Civilian conviction CCU - Correctional Custody Unit CBW - Confinement on bread and water
‘Docket No. MDI3-00952

 

TYPES OF DOCUMENTS SUBMITTED/REVIEWED

Related to Military Service:
DD 214: & Service/Medical Record: Other Records: oO
Related to Post-Service Period:
Employment: []  —_ Finances: C] Education/Training: {J
Health/Medical Records: [] Rehabilitation/Treatment: [_] Criminal Records: CI
Personal Documentation: [_] Community Service: T] References: EX
Department of VA letter: _ [[] Other Documentation: C}
Additional Statements: _
From Applicant: C) From/To Representation: [] From/To Congress member: - [[]

PERTINENT REGULATION/LAW

A, The Marine Corps Separation and Retirement Manual, (MCO P1900. 16F), effective | 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, Repularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.

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
CONF - Confinement CC - Civilian conviction CCU - Correctional Custody Unit CBW - Confinement on bread and water
. Docket No. MD13-00952
ee  oceet No. MDI3-00952,
DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)

DISCHARGE REVIEW DECISIONAL DOCUMENT

 

 

APPLICANT’S ISSUES

1. The Applicant seeks to enhance employment opportunities.
2. The Applicant contends youth and immaturity led to the drug use
3. The Applicant contends his post-service conduct warrants consideration for an upgrade.

DECISION
Date: 20131108 PERSONAL APPEARANCE HEARING Location: WASHINGTON D.C. Representation: NONE

By a vote of 3-2 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 (UCMJ): Article 112a (Drug abuse, wrongful use of a controlled substance, specifically a
positive urinalysis for 645ng/mL of MDMA). The Applicant had a pre-service drug waiver for using marijuana two times prior
to entering the Marine Corps and acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use
of Drugs on 25 November 2008. 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, to submit a written statement, and to request an administrative board.

Issue 1: (Nondecisional} The Applicant seeks to enhance employment opportunities: The NDRB has no authority to upgrade a
discharge for the sole purpose of enhancing employment opportunities. Regulations limit the NDRB’s review to a
determination of the propriety and equity of the discharge.

Issue 2: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends youth and immaturity led to
the drug use. While the Applicant may feel his youth and immaturity were the underlying causes of his misconduct, the record
clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record does not
demonstrate the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. The
NDRB recognizes that many of our servicemembers are young at the time they enlist for service, however, most still manage to
serve honorably. While some members may be less mature than others, the NDRB does not view a member’s claim of
immaturity to be a mitigating factor or a sufficient reason for misconduct. Relief denied.

Issue 3: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends his post-service conduct warrants
consideration for 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 a personal statement and four character reference letters. The NDRB determined the Applicant is moving.
in a positive direction but he did not provide sufficient post-service documentary evidence to form a basis of relief. The
Applicant could have produced additional evidence as stated in the Post-Service Conduct paragraph in the Addendum with the
full understanding that completion of these items alone does not guarantee an upgrade. The Board determined the
characterization of service received was an appropriate characterization considering the length of service and the UCMJ
violation. Relief denied.
Docket No. MD13-00952

Summary: After a thorough review of the available evidence, to include the Applicant’s summary 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 is not eligible for further reviews by the NDRB, The Applicant may petition the Board
for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using

DD Form 149. Their website can be found at http://www.donhg.navy.mil/benr/benr.htm.
a

 

 

 

Docket No. MD13-00952
a OCKET INO. EERO UFOS
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.afmil,”

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 Disabled 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 prant 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 reentistment, 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 cither 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. Documentaticn 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