Search Decisions

Decision Text

USMC | DRB | 2013_Marine | MD1301645
Original file (MD1301645.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20130815
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)       20090402 - 20090426     Active:  

Pre-Service Drug Waiver:

Period of Service Under Review:
 Date of Current Enlistment: 20090427     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20110114      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 18 D a y ( s )
Education Level:        AFQT: NFIR
MOS: 6 217
Proficiency/Conduct M arks (# of occasions): /          Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:

- 201 0 0714 :      Article ( Failure to obey order or regulation by having a substance known as “ S pice” in barracks room)
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling:

- 201 0 0714 :      For your recent NJP violation of Article 92

Administrative Corrections to the Applicant’s DD 214

 The NDRB did note administrative error(s) on the original DD Form 214:

         “ ”
         “ MISCONDUCT ”

The NDRB will recommend to the Commandant of the Marine Corps, MMSB-13, that the DD 214 be corrected as appropriate.

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 Department of Veterans Affairs ( VA ) benefits.
2 .        The Applicant seeks a severance package and a change to her reenlistment code .
3 .        The Applicant contends she did not know S pice was a banned substance , she was found to not have a substance abuse problem, and she served honorably for 20 months .
4 .        The Applicant contends the government failed to provide any evidence that it was in fact S pice.
5 .        The Applicant contends her administrative separation board failed to follow the required procedures to remove a partial or biased member of the board.
6 .        The Applicant contends her post-service conduct warrants an upgrade.

Decision

Date: 20 1 4 0512            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 6105 counseling warning and for o f the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation by having a substance known as “ S pice” in barracks room). The Applicant a pre-service drug waiver for using marijuana prior to entering the Marine Corps . Based on the violation of the Marine Corps zero-tolerance drug policy, processing for administ rative separation is mandatory. The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived rights to consult with a qualified coun sel, submit a written statement , and request an administrative board or a General Court-Martial Convening Authority review . However, the Applicant’s statements and L etter of D eficiency indicates that she appeared before an a dministrative separation board . The Applicant did not appear for her personal hearing but was represented by her counsel. The Applicant acknowledged in writing that she agreed to have her counsel represent her at the personal appearance hearing before the NDRB.

: (Nondecisional) The Applicant seeks VA 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.

 : (Nondecisional) The Applicant seeks a severance package and a change to her reenlistment code . The NDRB has no authority to a uthorize severance pay or change a reenlistment code . Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge. The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 using DD Form 149 to review whether she warrants a change to her reenlistment code and severance pay . Their website is http://www.donhq.navy.mil/bcnr/bcnr.htm .

Issues 3- 4 : (Decisional) ( ) . The Applicant contends she did not know Spice was a banned substance, she was found to not have a substance abuse problem, and she served honorably for 20 months. She further contends the government failed to provide any evidence that it was in fact Spice. Whether or not Spice was a legal substance when the Applicant used or possessed it, smoking or possessing it with the intention of getting high is a violation of SECNAVINST 5300.28D (Military Substance Abuse Prevention and Control) and is punishable under the UCMJ for violation of Article 92 (Failure to obey order or regulation) and requires, at a minimum, mandatory processing for an administrative separation. Whether or not the Applicant has a substance abuse problem is also irrelevant, as a single use is all that is required to warrant administrative discharge processing. Further, despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the to maintain proper order and discipline. Violation of

Article 92 and the Marine Corps zero-tolerance drug policy 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 Applicant was found guilty of violation of Article 92 at NJP. However, her 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.

5: (Decisional) ( ) . The Applicant contends her administrative separation board failed to follow the required procedures to remove a partial or biased member of the board. T he NDRB 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 brought forth this same contention in her Letter of Deficiency dated 01 October 2010 after her administrative separation board , and it is presumed the Separation Authority and his Judge Advocate General determined this contention did not change the propriety or equity of the separation. The Applicant brought forth no new evidence to support this claim. T he NDRB discerned no impropriety with the Applicant’s separation proceedings. Relief denied.

6 : (Decisional) ( ) . The Applicant contends her 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 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 counsel ’s statement s , t he Applicant failed to provide any documentary evidence on h er behalf for post-service consideration. The Applicant could have provided documentation as 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 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 is no longer eligible for additional reviews or hearings 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.donhq.navy.mil/bcnr/bcnr.htm . 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

Similar Decisions

  • NAVY | DRB | 2010_Navy | ND1002269

    Original file (ND1002269.rtf) Auto-classification: Denied

    The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the Naval Discharge Review Board. 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...

  • USMC | DRB | 2014_Marine | MD1400970

    Original file (MD1400970.rtf) Auto-classification: Denied

    The notification letter specifically states, “The factual basis for the recommendation of drug abuse is your wrongful possession of designer drug ‘Spice’ on or about 3 June 2010.” The record clearly shows the Applicant exercised his right to counsel and waived his rights to submit a written statement and request an administrative board. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application...

  • NAVY | DRB | 2011_Navy | ND1101582

    Original file (ND1101582.rtf) Auto-classification: Denied

    The Applicant wants to re-enlist. The Board determined that relief based on this issue was not warranted. ” 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.

  • USMC | DRB | 2011_Marine | MD1100933

    Original file (MD1100933.rtf) Auto-classification: Denied

    The Applicant wants his discharge upgraded so he can reenlist in the military.2. ” 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. 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...

  • NAVY | DRB | 2011_Navy | ND1101434

    Original file (ND1101434.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1.The Applicant contends Spice was not illegal to be sold in retail at the time of his discharge. 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,...

  • NAVY | DRB | 2012_Navy | ND1201481

    Original file (ND1201481.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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/ToCongress member: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD...

  • NAVY | DRB | 2012_Navy | ND1200741

    Original file (ND1200741.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant contends he was wrongfully accused of using Spice.2. Decision Date: 20130117Location: Washington D.C.Representation: OFFICE OF VETERAN SERVICES 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...

  • USMC | DRB | 2013_Marine | MD1300077

    Original file (MD1300077.rtf) Auto-classification: Denied

    The Applicant a pre-service drug waiver for using marijuana prior to entering the Marine Corps, acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 26 June 2008.Based on the drug policy violation, processing for administrative separation is mandatory.The Applicant signed a pre-trial agreement to plead guilty at non-judicial punishment or Summary Court-Martial for the Article 92 violations, provided the Convening Authority withdraw the charges and...

  • NAVY | DRB | 2011_Navy | ND1101105

    Original file (ND1101105.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. ” 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. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.

  • USMC | DRB | 2012_Marine | MD1200669

    Original file (MD1200669.rtf) Auto-classification: Denied

    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. ” Additional Reviews : After a document review has been conducted, former members are...