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USMC | DRB | 2014_Marine | MD1400794
Original file (MD1400794.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20140318
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)       20071012 - 20 071022     Active:  

Pre-Service Drug Waiver: P opped at MEPS and had to wait 45Days no waiver in his SRB

Period of Service Under Review:
Date of Current Enlistment: 20071023     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20110818      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 26 D a y ( s )
Education Level:        AFQT: 30
MOS: 3531
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

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

Periods of CONF :

NJP:

- 20100508 :      Article (Wrongful use, possession, etc. of controlled substances , m arijuana )
         Awarded: Suspended: 15 d ays

- 20101220 :       Article ( Failure to obey order, regulation - attempting to drive on base while d riving privileges were under with suspen sion)
         Awarded: Suspended: NONE

- 20110208:       Article (Wrongful use, possession, etc. of controlled substances , marijuana)
         Awarded: Suspended: 15 d ays
SCM:     SPCM:    CC:

Civilian Arrest:

         - 20100827: For domestic violence [Extracted from Commanding Officer’s letter ]

         - 20100924: For domestic disturbance [Extracted from Commanding Officer’s letter]






Retention Warning Counseling :

- 20080502:       For Article 92 , b ringing a lcohol into the Specker Complex .

- 20100325:       For Article 121 (Larceny) , s pecifically , on 20100320 you were detained by MP for larceny.

- 20100514 :       For your recent NJP for violation of Article 112a.

- 20101029 :       For Article 92 violation, i n that SNM failed to wear Service Charlie Uniform prescribed by the CG, 2ndMLG which is the last Friday of the month.
- 201 1 0 208 :       For Article 112a violation and NJP.

- 20110 3 29 :       For Article 86 (UA) o n or about 20110316 at 1045 and 20110317 at 0930, you failed to show up to your Chiropractor appointment.

- 20110411:      For Article 86 (UA) o n or about 20110414 you failed to show up at the morning accountability formation.

- 20110517 :       For Domestic Violence with CRC risk assessment level 4

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 wants an upgrade to be eligible for Department of Veterans Affairs (VA) education and medical benefits.
2.       The Applicant wants an upgrade to enhance employment opportunities.
 3 .       The Applicant contends youth and immaturity mitigate his misconduct.
4.       The Applicant contends he served with honor and pride , and his drug use was an isolated incident .

Decision

Date : 20 1 4 0814           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, for o f the Uniform Code of Military Justice (UCMJ): Article ( Wrongful use, possession, etc. of controlled substances , marijuana , 2 specifications ) and Article ( Failure to obey order or regulation , 1 specification of driving while under suspension ) , and two civilian arrests for domestic violence and domestic disturbance. The Applicant a pre-service d rug waiver for using marijuana six times prior to entering the Marine Corps and was discharged from the Marine Corps D elayed E ntry P rogram for a positive urinalysis for marijuana use. The Applicant acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 11 October 2007 . 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 and to submit a written statement but waived his right to request an administrative board .

: (Nondecisional) The Applicant wants an upgrade to be eligible for VA education and medical benefits. The Applicant also wants an upgrade to enhance employment opportunities. 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. As such, th ese issue s do not serve to provide a foundation upon which the NDRB can grant relief.
: (Decisional) ( ) . The Applicant contends youth and immaturity mitigate his misconduct. The Applicant’s record shows he was found guilty at NJP twice for using marijuana and once for failure to obey orders or regulations. The Applicant was also counseled in writing on eight occasions for misconduct and domestic violence. Civilian authorities also arrested the Applicant twice for domestic violence or disturbance. While the Applicant may feel his youth and immaturity were the underlying causes of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record does not demonstrate the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.
Issue 4: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends he served with honor and pride, and his drug use was an isolated incident. During the Applicant’s almost 3 years and 10 months of service, he received eight retention warnings, was found guilty of serious offenses at three NJPs, was arrested twice by civilian authorities for domestic violence, and met the requirements to be administratively separated for Misconduct (Drug Abuse), Misconduct (Serious Offense), and Misconduct (Pattern of Misconduct). Since t he Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation, the 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, aptitude, and physical and mental condition. Based on the Applicant’s record of service, the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service, and the awarded characterization of service was warranted. 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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