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USMC | DRB | 2014_Marine | MD1400350
Original file (MD1400350.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20131203
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)       20061212 - 20070701     Active:   20070702 - 20100921 HON

Pre-Service Drug Waiver:

Period of Service Under Review:
Date of Current Enlistment: 20100922     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20120518      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 26 D a y ( s )
Education Level:        AFQT: 54
MOS: 1161
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

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

Periods of UA / CONF :

NJP:

- 20111219 :      Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer)
         Article (Wrongful use, possession, etc. of controlled substances , 2 specifications )
         Specification 1: Oxycodone 2967 ng /ml
         Specification 2: Oxymorphone 6057 ng /ml
         Awarded: Suspended:

- 20120309 :       Article (Wrongful use, possession, etc. of controlled substances , Oxymorphone 462ng /ml )
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20111219 :       For violation of UCMJ Article 112a (Wrongful use of a Controlled Substance) at an unknown location, did wrongfully use oxycodone (2967 ng) and oxymorphone (6057 ng), Schedule II controlled substances

- 20120109 :       For violation of UCMJ Articles 91 (Insubordinate cond uct toward a warrant officer) on or about 20110902 disobeyed an order from a warrant officer and Article 112a (Wrongful use of a controlled substance on or about 20111026, at an unknown location, did wrongfully use oxycodone (2967 ng), and oxymorphone (6057 ng), scheduled II controlled substances



- 20120307 :       For my illegal drug involvement, specifically usage identified through urinalysis testing, DoD Navy Drug Screening Laboratory F01787224 for 462 ng of oxymorphone, a Schedule II controlled substance

- 20120309 :       For violation of UCMJ Article 112a (Wrongful use of a Controlled Substance) on or about 20120207, at an unknown location, you wrongfully used oxymorphone (462 ng), Schedule II controlled substance

Administrative Corrections to the Applicant’s DD 214

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

          “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 070702 UNTIL 100921 ”
         “ 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:                  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 his use of prescription pain medication was for an in-service injury .
2.       The Applicant contends his in-service conduct is worthy of an upgrade .
3.       The Applicant contends he was dealing with a bad marriage.

Decision

 Date: 20 1 4 0710           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 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 in his second enlistment included 6105 counseling warnings and nonjudicial punishments (NJPs) fo r o f the Uniform Code of Military Justice (UCMJ): Article ( Insubordinate conduct toward warrant officer, noncommiss ioned officer, or petty officer , ) and Article ( Wrongful use, possession, etc. of controlled substances , ). 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 10 December 2006 . 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 .

: (Decisional) ( ) . The Applicant contends his use of prescription pain medication was for an in-service injury. The record of evidence does not indicate the Applicant had a current prescription for oxycodone or oxymorphone at the time of either of his two positive drug tests. The record of evidence clearly indicates that while the Applicant had been prescribed these medications to treat injuries in the past , he had no current or valid prescription at the time of his positive drug test results as verified by a medical review conducted on 21 February 2012. As stated in the Applicant’s 09 March 2012 notification of separation proceedings, “…the prescription was dated 13 July 2011 and is considered wrongful use because of the length of time between the date the prescription was written and the unusually high nanogram levels in your urine.” Further, the evidence of record clearly shows the Applicant’s positive urinalysis on 26 October 2011 and subsequent nonjudical punishment and 6105 counseling warning had no effect on his decision to continue to unlawfully use prescription drugs as evidenced by his 07 February 2012 positive urinalysis and subsequent nonjudical punishment and 6105 counseling warning. Relief denied.
: (Decisional) ( ) . The Applicant contends his in-service conduct is worthy of an upgrade. The Applicant received an Honorable characterization of service for his first enlistment from July 2007 to September 2010. Each period of enlistment is an independent obligation and characterization is determined for that specific period of time. During his second enlistment, he received four retention warnings and was found guilty at two NJPs of multiple UCMJ violations. Since t he Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation , t he characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation. Other considerations shall be given to the member’s length of service, grade, deployments, aptitude, and physical and mental condition. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no impropriety in the discharge action or any inequity in the characterization of the Applicant’s service. Relief denied.



: (Decisional) ( ) . The Applicant contends he was dealing with a bad marriage . While the Applicant may feel that his bad marriage w as a contributing factor to his misconduct, it do es not mitigate his disobedience of the orders and directives that regulate good order and discipline in the Naval Service, demonstrating he was unsuitable for further service. 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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