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USMC | DRB | 2014_Marine | MD1400616

Original file (MD1400616.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20140204

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)       20081121 - 20090308     Active:

Pre-Service Drug Waiver:

Period of Service Under Review:
Date of Current Enlistment: 20090309     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20121019      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 11 D a y ( s )
Education Level:        AFQT: 76
MOS: 0111
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle LoA (4) MM

Period of CONF :

NJP:

- 20100429 :      Article (Failure to obey order or regulation, consuming alcohol under the legal drinking age of 21)
         Awarded: Suspended: Vacated 20100503

- 20100506 :      Article (General A rticle, violated barracks restrictions by leaving after the check in and going to Diesel Draught Haus in Havelock)
         Awarded: Suspended:

- 20100610 :      Article (General A rticle, violate restriction order by being in a female barracks room)
         Awarded: Suspended:

- 20120913 :      Article 86 (Absence without leave)
         Article 92 (Failure to obey order or regulation)
         Article 111 (Drunken or reckless operation of a vehicle, aircraft, or vessel)
         Article (Wrongful use, possession, etc. of controlled substances , Percocet )
         Article 131 (Perjury)
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20100503 :       For on 20100429, you received a n NJP for the following violation: Failure to obey an order, specifically , on or about 20100416, you failed to obey ASO 1746 2B by wrongfully consuming alcohol while under the legal drinking age of 21

- 20100506 :       For on 20100506, you received a n NJP for the following violation: General Article Specification 102. Specifically , on or about 20100430, you violated your barracks restriction by leaving after the 2145 check in and going to Diesel Draught Haus in Havelock

- 20100621 :       For General Order Specification 2, specifically , on 20100505 at 0158, you violated your restriction order by b eing in a female barracks room

- 20120913 :       For violation of Article 86, Absence without leave, violation of Article 92, Failure to obey an order or regulation, violation of Article 111, Drunken or reckless operation of a vehicle, violation of Article 112a, Wrongful use, possession, etc., of controlled substance, viola tion of Article 132, Perjury

- 20120925 :       For illegal drug involvement, specifically, wrongful usage of Percocet as of 20111130

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:                  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 he was improperly coerced into accepting NJP for wrongfully using drugs even though there was no proof that he used drugs , he never failed a drug test, and he was overwhelmed by events when he signed that he was guilty.

Decision

Date : 20 1 4 0807 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 6105 counseling warnings and for o f the Uniform Code of Military Justice (UCMJ): Article ( Failure to obey order or regulation , ), Article ( General Article, ), Article 86 (Absence without leave , 1 specification), Article 111 (Drunken or reckless operation of a vehicle, aircraft, or vessel , 1 specification), Article 131 (Perjury , 1 specification), and Article ( Wrongful use, possession, etc. of controlled substances , Percocet , ) . 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 20 November 2008 . 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 right to consult with a qualified coun sel but waived his rights to submit a written statement and request an administrative board .

: (Decisional) ( ) . The Applicant contends he was improperly coerced into accepting NJP for wrongfully using drugs even though there was no proof that he used drugs, he never failed a drug test, and he was overwhelmed by events when he signed that he was guilty. 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 s . There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was wrongfully coerced into accepting NJP or administrative separation. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. During the Applicant’s 3 years and 7 months of service, he was found guilty of violating multiple serious UCMJ articles at four NJPs, received five retention warnings, and met the requirements to be administratively separated for a Pattern of Misconduct, Commission of a Serious Offense, and Drug Abuse. To be found guilty of drug abuse at NJP, one does not need to test positive on a drug test. All that is needed is a preponderance of the evidence that he was guilty. Once notified of administrative separation processing, he elected to meet with counsel but waived his right to present his case before an administrative separation board. The NDRB determined his discharge was warranted, proper, and equitable , and being overwhelmed does not mitigate his misconduct . 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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USMC | DRB | 2014_Marine | MD1400616

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