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USMC | DRB | 2014_Marine | MD1400342
Original file (MD1400342.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20131206
Characterization of Service Received:
Narrative Reason for Discharge: REDUCTION IN FORCE
Authority for Discharge: MARCORSEPMAN 6404.3 HOLIDAY EALRY RELEASE PROGRAM

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

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       20080603 - 20080608     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20080609     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20120403      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 26 D a y ( s )
Education Level:        AFQT: 43
MOS: 0621
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations (per DD 214):      Rifle ACM (3) (2) LoA

Periods of UA :

NJP:     SPCM:    CC:      Retention Warning Counseling :

SCM:

- 20090330 :       Art icle ( Failure to obey order or regulation , 2 specifications )
         Specification 1: SNM did on or about 20090208 had possession and consumption of alcohol under the age of 21
         Specification 2: SNM did on or about 20090209 had possession of Salvia, a known natural hallucinogen
         Article (Wrongful use, possession, etc. of controlled substances , 2 specifications )
         Specification 1: SNM did on or about 20090209 introduced 3 ounces of Salvia onto Camp Lejeune
         Specification 2: SNM did on or about 20090226 wrongfully use Xanax, to wit overdosing his prescription med
         Sentence : (20090330-20090422, 24 days)

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 wants to be eligible for Department of Veterans Affairs (VA) education benefits.
2.       The Applicant contends errors occurred in the assignment of P roficiency (Pro) and C onduct (Con) marks that improperly lowered his average in-service marks and resulted in a General (Under Honorable Conditions) discharge.

Decision

Date : 20 1 4 0717           Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall REDUCTION IN FORCE .
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 of the UCMJ: Article 92 ( Failure to obey order or regulation , 1 specification of possession and consumption of alcohol under 21 years of age, and 1 specification of possession of a hallucinogen - Salvia) and Article 112a (Wrongful use, possession, etc. of controlled substances , 1 specification of introduction of Salvia to Marine Corps Base Camp Lejeune and 1 specification of wrongful use of a prescription drug - Xanax). The Applicant also had a pre-service drug waiver for using marijuana prior to entering the Marine Corps, and acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 26 M ay 2008 . Although violation of UCMJ Article 112a requires mandatory processing for administrative separation, the Applicant was retained in service and was discharged on 3 April 2012 for R eduction in F orce with a General characterization of service .

: (Nondecisional) The Applicant wants to be eligible for VA education benefits. There is no requirement, or law, that grants re-characterization solely on the issue of facilitating access to VA benefits. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities or employment opportunities. Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge.

: (Decisional) ( ) . The Applicant contends errors occurred in the assignment of Pro and Con marks that improperly lowered his average in-service marks and resulted in a General (Under Honorable Conditions) discharge. In accordance with Paragraph 1004 of the Marine Corps Separation and Retirement Manual, an Honorable characterization of service upon the expiration of active duty is appropriate when the quality of a Marine’s service has met the standards of accepted conduct and performance of duty for military personnel. Therefore, characterization of service will be Honorable for Marines with average Proficiency marks of 3.0 or higher and average Conduct marks of 4.0 or higher. The Applicant completed his obligated service and his overall marks for proficiency and conduct were 3.9 and 3.8 , respectively. The Applicant contends h is average Pro and Con marks were improperly lowered because he was given marks of 3.9 and 3.5 on 31 January 2010 and marks of 3.0 and 3.0 on 31 July 2010 , which are below average and not properly documented with a counseling entry in his service record book (SRB) in accordance with administrative regulations. The Applicant also contends he was not properly given markings for the occasion of his S ummary Court-Martial and reduction in rank on 30 March 2009, but his markings were withheld until applied on the semiannual period for 31 July 2009 when he received markings of 2.9 and 2.8. The NDRB determined that although the Applicant’s below average P roficiency and C onduct marks were not explained in a SRB counseling entry, the Applicant’s markings were made as regular semiannual evaluations and reflected his command’s honest assessment of the Applicant’s performance and conduct during the periods covered. T he NDRB does not speculate why the Applicant was given below average markings for the semiannual periods 31 January and 31 July 2010, however, they were properly assigned in accordance with regulations. If the Applicant felt his performance evaluations were unfair, he should have contested the m at the time through his chain of command or requesting mast. The NDRB determined the Applicant’s discharge characterization was proper and equitable. Relief denied.

Further, the Applicant was not awarded a Good Conduct Medal, which requires three years of misconduct-free service. The Applicant served less than a year before being found guilty at a Summary Court-Martial. The confusion likely arose from Block 18 on the Applicant’s DD Form 214, which reset the three year counter after the Applicant’s Summary Court-Martial.

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 REDUCTION IN FORCE . 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 620 2 , CHANGE IN SERVICE OBLIGATION .
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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