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USMC | DRB | 2013_Marine | MD1301855
Original file (MD1301855.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20130925
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

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

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       20070914 - 20070917     Active:  

Pre-Service Drug Waiver:

Period of Service Under Review:
Date of Current Enlistment: 20070918     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20110701      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 14 D a y ( s )
Education Level:        AFQT: 25
MOS: 1316
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle ( 3 ) MM

Periods of CONF :

NJP: Not Found in Record          SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20090901 :       For unauthorized absence

- 20091119 :       For disobeying a lawful order

- 20091211 :       For rescindment of the MPO issued on 20091116 for the purpose of protecting both you and your spouse

- 20100218 :       For financial irresponsibility. Specifically, your family member drew and issued personal checks to the Marine Corps Exchange , which were returned as unpaid by the bank.

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 :        


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

Applicant’s Issues

 1.       The Applicant contends his command treated him unfairly, he was struggling with personal issues, his command urinalysis procedures were done improperly, he was denied the right to appear before a court-martial, he was discriminated against, he was never taken to Nonjudicial Punishment (NJP) or court-martialed, and all charges were withdrawn and dismissed.
2.       The Applicant contends his post-service conduct warrants consideration for an upgrade.

Decision

 Date : 20 1 4 0428            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 sta ndards of equity and propriety. The Applicant’s record of service included 6105 counseling warnings . In July 2010, t he Applicant tested positive on a urinalysis test for using marijuana. Wrongful use of a controlled substance is a violation of U niform Code of Military Justice (UCMJ) Article 112a (Wrongful use, possession, etc., of a controlled substance). The Applicant a pre-service drug waiver prior to entering the Marine Corps . Based on the Article 112a violation , 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 separation code of GKK1 on his DD Form 214 indicates he did exercise his right to appear before an administrative board. Additionally, t he Applicant submitted evidence that an a dministrative s eparation b oard convened on 27 April 2011 and determined by majority vote that a preponderance of evidence supported M isconduct ( D rug A buse) and recommended the Applicant be discharged with a General (Under Honorable Conditions) characterization of service. The Separation Authority agreed with the b oard’s findings and recommendation s and discharged the Applicant on 1 July 2011.

: (Decisional) ( ) . The Applicant contends his command treated him unfairly, he was struggling with personal issues, his command urinalysis procedures were done improperly, he was denied the right to appear before a court-martial, he was discriminated against, he was never taken to NJP or court-martialed, and all charges were withdrawn and dismissed. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contentions that his command treated him unfairly, command urinalysis procedures were done improperly, or that he was discriminated against. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. What the record does show is that the Applicant’s command gave him multiple opportunities to correct his poor behavior. Though he never went to NJP or court-martial, he received four retention warnings before his positive urinalysis result. The misconduct involved with these retention warnings all warranted administrative discharge processing, yet his command allowed him to continue to serve. With the positive urinalysis for marijuana, the command was required to administratively process the Applicant for separation. The Applicant refused NJP and requested to go to court-martial. This, however, is a request and is not a right. The Applicant’s command did not have to honor that request. The record does contain referring of charges to a Special Court-Martial, though it is unclear as to what charges were referred to a court-martial. These charges were subsequently dropped. The Applicant’s command, however, determined the Applicant was no longer fit to serve and initiated the administrative separation process, which is separate and distinct from the punitive discharge process that would occur as the result of a court-martial conviction. Violation of the Marine Corps zero-tolerance drug policy does not require adjudication by NJP or judicial proceedings or civilian conviction, however, the offense must be substantiated by a preponderance of evidence. In this case, the Applicant’s positive urinalysis

provided the preponderance of the evidence that he violated the drug policy. Although his notification of administrative separation processing was not found in his record, the Applicant elected his right to appear before an administrative separation board, which leniently recommended he receive a General discharge for Misconduct (Drug Abuse). The Separation Authority concurred and ordered his discharge. After a thorough review of the Applicant’s records and documentation submitted with his application to the NDRB, the NDRB found that personal problems did not mitigate his misconduct and his discharge was warranted, proper, and equitable. Relief denied.

Issue 2: (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, evidence of college enrollment, and numerous training certificates. 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 that the documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration. The characterization of service received was appropriate considering the length of service and violation of the Marine Corps drug policy. 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.

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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