Search Decisions

Decision Text

USMC | DRB | 2013_Marine | MD1301691
Original file (MD1301691.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20130805
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to: COMPLETION OF REQUIRED ACTIVE SERVICE

Summary of Service
Prior Service:
Inactive:         USMCR (DEP)       20090204 - 20090809     Active:  

Pre-Service Drug Waiver:

Period of Service Under Review:
Date of Current Enlistment: 20090810     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20120523      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 14 D a y ( s )
Education Level:        AFQT: 60
MOS: 0311 / 0317
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (2) w/ Combat “V” (2) ACM ( 3 ) GWOTSM
Periods of UA / CONF :

NJP:

- 20120226 :      Article (Wrongful use, possession, etc. of controlled substances)
         Awarded : Susp ended:

SCM:     SPCM:    CC:      Retention Warning Counseling :

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:                  Oth er Documentation:    
                  Additional Statements :
         From Applicant:            From /To Representation:            From /To Congress m ember :        

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 contends that impropriety existed in the Administrative Separation Board ’s recording that affected the Separation Authority’s decision to discharge the Applicant.
2.       The Applicant contends his post-service conduct warrants consideration for an upgrade of his discharge to Honorable.
3 .       The Applicant contends his discharge was inequitable based on his record in the Marine Corps and his combat awards.

Decision

Date : 20 1 4 0320            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 for o f the Uniform Code of Military Justice (UCMJ): Article ( Wrongful use, possession, etc. of controlled substances , of steroid possession ) . The Applicant a pre-service drug waiver prior to entering the Marine Corps, acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 4 January 2009 . 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 rights to consult with a qualified coun sel, submit a written statement , and request an administrative board . On 6 April 2012, an Administrative Separation Board determined by 3-0 vote that a preponderance of evidence proved the misconduct , that the Applicant be separated from the Marine Corps with an Under Other Than Honorable Conditions discharge, but that the discharge be suspended. The Separation Authority agreed with the b oard’s findings but disagreed with suspending the discharge. The Applicant was discharged from the Marine Corps on 23 May 2012 Under Other Than Honorable Conditions.

: (Decisional) ( ) . The Applicant contends that impropriety existed in the Administrative Separation Board ’s recording that affected the Separation Authority’s decision to discharge the Applicant. The Applicant contends that verbal witness statements for the Applicant during the hearing were inaccurately summarized in the recording. The Applicant contends that relevant and substantial statements as to the Applicant’s character and facts concerning the events of the misconduct were left out of the b oard ’s recording and had a negative effect on the Separation Authority’s decision to disagree with the b oard’s recommendation to suspend the Applicant’s discharge. The NDRB agrees that the summarized recording of the Administrative Separation Board did not include all of the testimony of the Applicant’s witnesses on his behalf , however, the b oard ’s Senior Member and the b oard ’s Recorder both signed the Authentication of Record testifying that it was a substantially accurate record of the hearing. In addition to the summarized recording, the Applicant’s defense attorney attached a two - page request to the Separation Authority on behalf of the Applicant requesting suspension of the Applicant’s discharge and making his case for the Applicant . Although the b oard recommended the Applicant’s discharge be suspended, the Applicant’s entire chain of command, from his Company Commander to his Regimental Commander, recommended to the Separation Authority that the Applicant be discharge d . The NDRB determined the Separation Authority had the essential facts and recommendations to determine his decision in this case and that he made his decision to discharge the Applicant with full knowledge of the Applicant’s record and character. Relief denied.

: (Decisional) ( ) . The Applicant contends his post-service conduct warrants consideration for an upgrade of his discharge to Honorable. 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, a criminal background check, and 12 character references. T he NDRB determined the characterization of service was appropriate. Relief denied.
: (Decisional) ( ) . The Applicant contends his discharge was inequitable based on his record in the Marine Corps and his combat awards. The Applicant began his active service in the Marine Corps on 10 August 2009. He served twice in Afghanistan from September 2010 to March 2011 and from January 2012 to May 2012 , conducting combat operations in support of Operation ENDURING FREEDOM. During the Applicant’s first combat deployment to Afghanistan, he saved the lives of his fellow Marines by maneuvering through heavy enemy machinegun fire and engaging the enemy with his weapon , killing four enemies . In another engagement, the Applicant risked his own life by exposing himself to enemy fire to locate an enemy position and engage them with fire to suppress them and saved his fellow Marines who were pinned down by the enemy. For his actions, t he Applicant was awarded the Combat Action Ribbon and the Navy and Marine Corps Achievement Medal with combat distinguishing device for heroic achievement. The Applicant’s average in - service P roficiency and C onduct marks were 4.4 / 4.3, respectively , and his average markings prior to his NJP were 4.5 / 4.5. The Applicant earned the M ilitary O ccupational S pecialty of Rifleman (0311) and Scout Sniper (0317). After a careful review of the Applicant’s total service record, and considering his heroic actions in combat, and the testimony of his fellow Marines and employers, the NDRB determined that, although his discharge was proper, his characterization of service was not equitable. Therefore, the NDRB determined, by majority vote, to change the Applicant’s characterization of service to Honorable and to change his narrative reason for discharge to Secretarial Authority. The NDRB does not condone the Applicant’s misconduct but considered it to be an isolated incident and an aberration in his otherwise honorable service in the Marine Corps. Relief granted.

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 change to . 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

Similar Decisions

  • USMC | DRB | 2010_Marine | MD1001034

    Original file (MD1001034.rtf) Auto-classification: Denied

    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. ” 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. Reenlistment/RE-code : Since the NDRB has no jurisdiction...

  • USMC | DRB | 2010_Marine | MD1000948

    Original file (MD1000948.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: Pertinent Regulation/Law A. The Applicant seeks an...

  • USMC | DRB | 2010_Marine | MD1001236

    Original file (MD1001236.rtf) Auto-classification: Denied

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

  • USMC | DRB | 2010_Marine | MD1001150

    Original file (MD1001150.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/To Congress member: Pertinent Regulation/Law A. The Applicant served for...

  • NAVY | DRB | 2010_Navy | ND1001043

    Original file (ND1001043.rtf) Auto-classification: Denied

    Based on the Article 112a violation, processing for administrative separation is mandatory. Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entriesand 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...

  • NAVY | DRB | 2010_Navy | ND1000899

    Original file (ND1000899.rtf) Auto-classification: Denied

    The Navy granted him a waiver to enlist.Based on the Article 112a violation, processing for administrative separation is mandatory. ” 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 | 2014_Marine | MD1400790

    Original file (MD1400790.rtf) Auto-classification: Denied

    On 14 December 2009, an Administrative Separation Board determined that a preponderance of the evidence supported drug abuseand recommended the Applicant be separated from the Marine Corps Under Other Than Honorable Conditions, but that the separation be suspended. Full relief to Honorable and a narrative change to Administrative was not granted because of the serious nature of the misconduct and because he was properly discharged for Misconduct (Drug Abuse).Summary: After a thorough review...

  • NAVY | DRB | 2010_Navy | ND1000938

    Original file (ND1000938.rtf) Auto-classification: Denied

    Based on the Article 112a violation, processing for administrative separation is mandatory. Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entriesand 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...

  • NAVY | DRB | 2010_Navy | ND1000889

    Original file (ND1000889.rtf) Auto-classification: Denied

    Based on the Article 112a violation, processing for administrative separation is mandatory. Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entriesand 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...

  • NAVY | DRB | 2010_Navy | ND1001005

    Original file (ND1001005.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entriesand 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...