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USMC | DRB | 2013_Marine | MD1301642
Original file (MD1301642.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20130711
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to:

Summary of Service

Prior Service:
 Inactive:         USMCR (DEP)       20090126 - 20090607     Active:  

Pre-Service Drug Waiver:

Period of Service Under Review:
 Date of Current Enlistment: 20090608     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20100826      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 19 D a y ( s )
Education Level:        AFQT: 42
MOS: NONE
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:

- 2010051 8 :      Article ( Failure to obey order or regulation, w rongful ly smoking SPICE )
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling:

- 20100518 :      For your recent NJP for violation of Article 92 of the UCMJ. On or about 20100205, you violated TECOMO 5800, dated 20100111, by wrongfully smoking 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:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

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 a change in his RE-code to reenlist into the Armed Forces.
2.       The Applicant contends his separation documentation said he was to be discharged for Misconduct (Drug Abuse) when the charge was failure to obey an order or regulation.
 3.       The Applicant contends Spice was not an illegal substance.
4.       The Applicant contends he served his 60-day restriction punishment that was awarded at Nonjudicial Punishment (NJP) , and his offense did not warrant separation.
5.       The Applicant contends he served honorably, and his chain of command recommended the separation be suspended.
6.       The Applicant contends his post-service conduct warrants consideration for an upgrade.

Decision

Date: 20 1 4 0312            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. T he Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included 6105 counseling warning and for o f the Uniform Code of Military Justice (UCMJ): Article ( Failure to obey order or regulation , ) . The Applicant acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 17 January 2009 . Based on the offense committed by the Applicant, command administratively processed for separation. Based on the Article 92 violation, processing for administrative separation is mandatory. When notified of a dministrative separation processing using the procedure, the Applicant rights to consult with a qualified coun sel, submit a written statement , and request an administrative board .

: (Nondecisional) The Applicant seeks a change in his RE-code to reenlist into the Armed Forces. 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 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.

Issues 2-3: (Decisional) (Propriety) RELIEF NOT WARRANTED. The Applicant contends his separation documentation said he was to be discharged for Misconduct (Drug Abuse) when the charge was failure to obey an order or regulation. He also contends Spice was not an illegal substance. At the time of the offense, use or possession of Spice was considered to be a failure to obey an order or regulation. Specifically, use of Spice was a failure to obey the Marine Corps drug policy and S ecretary of the Navy Instruction 5300.28D (Military Substance Abuse Prevention and Control), which prohibits the use of any substance, legal or not, to get high. Even though Spice may not have been illegal at the time of use, the Applicant had a duty not to use any substance to get high in accordance with Marine Corps and Department of the Navy policies. In accordance with separation proceedings, the basis for discharge for the use of Spice is Misconduct (Drug Abuse). Failure of a urinalysis is not required to be separated for Misconduct (Drug Abuse). A complete review of the Applicant’s NJP and separation proceedings shows that his discharge was conducted properly. Relief denied.




Issue 4: (Decisional) (Propriety /Equity ) RELIEF NOT WARRANTED. The Applicant contends he served his 60-day restriction punishment that was awarded at NJP, and his offense did not warrant separation. The Applicant’s commanding officer found him guilty of violating UCMJ Article 92 for wrongfully smoking Spice and reduced him in rank and assigned him to restriction. Subsequent to his NJP, he determined the Applicant was no longer fit for service and processed the Applicant for administrative separation. Per Appendix 12 of the Manual for Courts-Martial, violation of UCMJ Article 92 is considered a serious offense and warrants a punitive discharge (i.e., Bad Conduct), confinement, fine, and reduction in rank if found guilty at a Special or General Court-Martial. However, his command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. Administrative discharge processing is a separate and distinct process from punitive proceedings such as NJP or court-martial. Furthermore, administrative discharge processing is administrative in nature and not considered a form of punishment. As such, the Applicant’s contention s that he was punished twice for the same misconduct and his offense did not warrant separation are erroneous. 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 5: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends he served honorably, and his chain of command recommended the separation be suspended. During the Applicant’s 14 months of service, he received a retention warning and was found guilty at NJP of wrongfully smoking Spice, which requires mandatory separation processing. Though multiple members of his chain of command recommended that his separation be suspended, those are only recommendations. The final decision rests with the Separation Authority, who was Commanding General, Training and Education Command. After reviewing all the facts and circumstances of the case and reviewing the recommendations from the chain of command, the Commanding General determined to not suspend the separation and ordered the Applicant to be discharged Under Other Than Honorable Conditions for Misconduct (Drug Abuse). The NDRB determined his discharge was warranted, proper, equitable, and completely in line with what others received for similar misconduct and with similar service. Relief denied.

Issue 6: (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 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. T he Board determined the characterization of service received was appropriate considering the length of service and UCMJ violation. 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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