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USMC | DRB | 2013_Marine | MD1301109
Original file (MD1301109.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20130422
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to: Non-Retention on Active Duty

Summary of Service

Prior Service:
 Inactive:         USMCR (DEP)       20000518 - 20010325     Active:  

Pre-Service Drug Waiver:

Period of Service Under Review:
 Date of Current Enlistment: 20010326     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20020729      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 04 D a y ( s )
Education Level:        AFQT: 32
MOS: 3533
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:

- 20020605 :      Article (Wrongful use, possession, etc. of controlled substances , wr ongful use of cocaine, 394 ng/ml )
         Awarded: Suspended:

SCM: SPCM: CC: Retention Warning Counseling:

NDRB Documentary Review Conducted (date):        20100430
NDRB Documentary Review Docket Number:   MD09-01919
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.
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:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        


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

Applicant’s Issues

 1.       The Applicant contends his in-service conduct warrants an upgrade to General (Under Honorable Conditions) .
2 .       The Applicant contends his narrative reason is improper.
3 .       The Applicant contends his drug use was a minor incident and not a serious offense.
4 .       The Applicant contends a urinalysis cannot be used to determine characterization of service.
5 .       The Applicant contends his post-servi ce conduct warrants an upgrade.

Decision

 Date: 20 1 4 0326            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 for o f the Uniform Code of Military Justice (UCMJ): Article 112a (Wrongful use, possession, etc. of controlled substances, wrongful use of cocaine, 394 ng/ml). The Applicant a pre-service drug waiver for using illicit drugs prior to entering the Marine Corps. acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 17 M ay 2000 . Based on the Article 112a violation , processing for administ rative separation is mandatory. When notified of a dministrative separation processing using the procedure, the Applicant exercised right to consult with a qualified coun sel, but waived his rights to submit a written statement and request an administrative board .

: (Decisional) ( ) . The Applicant contends his in-service conduct warrants an upgrade to General (Under Honorable Conditions) . The Applicant specifically contends that per Marine Corps Separation and Retirement Manual (MARCORSEPMAN) paragraph 1004 , his characterization should be General (Under Honorable Conditions). In addition, the Applicant states his P roficiency and C onduct marks support his contention. The Applicant’s proficiency and conduct marks were 4.5 and 4.4, respectively. Certain serious offenses warrant separation from the service to maintain proper order and discipline. Violation of Article 112a is one such offense requiring mandatory processing for administrative separation regardless of grade 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 sp ecial or general court-martial. Per MARCORSEPMAN 6210.5 (misconduct due to drug abuse), characterization of service normally shall be under other than honorable conditions, but characterization as G eneral ( U nder H onorable C onditions) may be warranted in some circumstances . Since the Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation, the characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation. Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition. Based on the Applicant’s record of service, the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service , and the awarded characterization of service was warranted. Relief denied.
: (Decisional) ( ) . The Applicant contends his narrative reason is improper. T he record clearly shows the Applicant was notified of separation proceedings for Misconduct ( Drug Abuse ) on 25 June 2002 . When the Applicant was provided the opportunity to present his case before an administrative separation board or to include written statements to the Separati on Authority, he waived these rights. No other narrative reason other than misconduct due to the Applicant’s drug abuse more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation. Relief denied.
: (Decisional) ( ) . The Applicant contends his drug use was a minor incident and not a serious offense. The Applicant references section 11 of his NAVMC 10132 form ( NJP record) , which states “[The Commanding Officer ] determined the offense(s) involved herein to be minor and properly punishable under Article 15, UCMJ.” Per the Manual for Courts Martial, t he Commanding Officer may use personal discretion in determining whether nonjudicial punishment is appropriate and v iolation of Article 112a is considered a serious offense . V iolation of Article 112a may be punishable by a punitive discharge and possible confinement of up to five years. Although his command chose to adjudicate the Applicant’s misconduct at NJP and not at a court-martial , v iolation of Article 112a is still a serious offense per Appendix 12 of the Manual for Courts-Martial . The NDRB determined the A pplicant’s separation was proper and equitable. R elief denied.

4 : (Decisional) ( ) . The Applicant contends a urinalysis cannot be used to determine characterization of service. The Applicant states that “urinalysis results obtained during fitness for duty examinations, if not based on probable cause or valid medical purpose , cannot be used as the basis for unfavorable characterization.” There is no record nor did the Applicant submit any evidence to indicate that his urinalysis was a fitness for duty examination. On the contrary, t he Substance Abuse Control Officer letter dated 11 June 2002 indicates the Applicant’s urinalysis was command directed for new joins . Therefore, the NDRB determined that the Applicant’s urinalysis was not a fitness for duty examination. Per MARCORSEPMAN 6210.5, evidence obtained from an involuntary urinalysis administered pursuant to an inspection under Military Rule of Evidence in the current version of the Manual for Courts Martial, or from a search and seizure under Military Rules of Evidence 311 317, or incident to an examination conducted for a valid medical reason may be used to characterize a member's discharge as under other than honorable conditions. Therefore, the NDRB determined the Applicant’s contention to be without merit. Relief denied .

5 : (Decisional) ( ) . The Applicant contends his post-service conduct warrants 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 good conduct or achievements 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. The NDRB conducted a thorough review of the available records, to include significant, credible evidence submitted by the Applicant. After detailed analysis and careful consideration of the facts and unique circumstances surrounding the Applicant’s record, and the substantial post-service evidence submitted on his behalf, the Board determined that relief was warranted in this case. Accordingly, the Applicant’s characterization of service shall change to General (Under Honorable Conditions). Relief granted.

Summary: After a careful review of the Applicant’s post-service documentation and official service records, and the facts and circumstances unique to this case, the Board found the discharge was proper and equitable at the time of discharge. However, the NDRB determined relief is warranted based on equitable grounds. The NDRB voted 4-1 to upgrade the characterization of service to but the narrative reason for separation shall remain . The Applicant is not eligible for further reviews from 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.donhq.navy.mil/bcnr/bcnr.htm.

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 .


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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