Upgrade.Vet

USMC | DRB | 2014_Marine | MD1400875

Original file (MD1400875.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20140407

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)       20060817 - 20061229     Active:

Pre-Service Drug Waiver:

Period of Service Under Review:
Date of Current Enlistment: 20061230     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20090109      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 06 D a y ( s )
Education Level:        AFQT: 34
MOS: 0151
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle LoA

NJP:

- 20080515 :      Article (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer)
         Article (Drunken or reckless operation of vehicle, aircraft, or vessel)
         Article (Provoking speeches or gestures)
         Article (General article) 2 specifications
         Specification 1: Wrongfully and willfully impersonate a higher ranking officer
         Specification 2: Drunk and disorderly
         Awarded: Suspended:

SCM:

- 20081124 :      Article (Absence without leave)
         Specification 1: 0730-1530, 20081017
         Specification 2: 0730, 20081023 - 0730, 20081024, 1 day
         Article (Wrongful use, possession, etc. of controlled substances by wrongfully distributing 4 Percocet pills )
         Sentence: FOR 27 DAYS (20081024-20081118, 26 days)

SPCM:

CC:

Retention Warning Counseling:

- 20070917 :      For your failure to adhere to Marine Corps Standards of Conduct. Your continuous absences from your appointed place of duty are unacceptable. This behavior is prejudicial to good order and discipline and will not be tolerated in the Marine Corps.

- 20080707 :      For violation of Articles 92, 117, 134 (2 specifications) and 111. You were absent from field day, disrespectful toward SNCO, used provoking words or gestures toward a SNCO, wrongfully and willfully impersonated a higher ranking SNCO, drunk and disorderly, and drunk while trying to pass through the gates. Your actions demonstrate your lack of discipline, attention to detail, and disregard for authority.

- 20080722 :       For violation of Articles 92 and 134 (3 specifications). You disobeyed a lawful order by not following his restriction and broke his restriction by not checking in for three of his restriction musters. Your actions demonstrate your lack of discipline, attention to detail, and disregard for authority.

NDRB Documentary Review Conducted (date):        20090114
NDRB Documentary Review Docket Number:   MD 09-01429
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.

Administrative Corrections to the Applicant’s DD 214

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

         “ 20 06 12 04 ”
         “ 02 00 10 ”
         “ (1) 20081023; (26) 20081024-20081118 ”

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:                  Other Documentation:
                  Additional Statements:
         From Applicant:          From/To Representation:          From/To Congress member:

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 seeks an upgrade to receive G. I. Bill and service benefits.
2. The Applicant contends that his command treated him unfairly.
3. The Applicant contends his discharge is improper because there was no evidence presented at his court-martial to find him guilty of Article 112a.

Decision

Date: 20 1 4 925 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 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 (Insubordinate conduct toward warrant officer, noncommiss ioned officer, or petty officer, ), Article ( Drunken or reckless operation of vehicle, aircraft, or vessel , ), Article (Provoking speeches or gestures , ) , Article ( General Article , ); and for of the UCMJ: Article ( Absence without leave , 1 specification), and Article 112a ( Wrongful use, possession, etc. of controlled substances , ). 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 18 July 2006 . Based on the Article 112a violation , processing for administ rative separation is mandatory. The Applicant had a pre-trial agreement (PTA) dated 12 NOV 08 stating that the Applicant would “plead guilty to the Additional Charge, Specifications 1 and 2, at Summary Court-Martial (SCM), and waive his rights to an administrative separation (ADSEP) board”. When notified of a dministrative separation processing using the procedure, the Applicant rights to consult with a qualified coun sel and submit a written statement , but subsequently waived his right to an administrative board in accordance with the PTA.

: (Nondecisional) The Applicant seeks an upgrade to receive G. I. Bill and service benefits . The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities. Furthermore, t he 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. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

: (Decisional) ( ) . The Applicant contends that his command treated him unfairly . 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 contention the command treated him unfairly. On the other hand, the Board found that the command utilized every resource available to help the Applicant resolve his issues and stay in the Marine Corps. The evidence in the record show s that the Applicant had a pre-service DUI waiver in Dec 2006 and had his first in - service alcohol related incident in Jul 2007. The Applicant was evaluated in October 2007 for his drinking problems and recommended to attend IMPACT. For reasons not made clear in the record, the Applicant did not attend IMPACT. On 20071106, the record shows that the Applicant had another alcohol related incident in which he reported drank 12 beers and was being abusive to a female security guard. Th i s incident alone could have easily and justifiable led to the servicemembers discharge with an Under Other Than Honorable discharge due to commission of a serious offense. The Applicant subsequently had several other alcohol related incidents included an in-service DUI on 20080419. Instead of discharging the member during these incidents o f misconduct, the Applicant’s command referred him to the substance abuse rehabilitation program twice, and allowed him to complete Level I and Level III in-patient alcohol treatment. The command did not discharge the member until after he was found guilty of misconduct at a Summary Court Martial on 20081124. The NDRB found that the Applicant’s command exhaust ed every resource in an attempt to allow the Applicant to continue his commitment to the Marine Corps. Despite there being more than enough evidence to do so, the command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. The NDRB determined an upgrade would be inappropriate. Relief denied.

: (Decisional) ( ) . The Applicant contends his discharge is improper because there was no evidence presented at his court-martial to find him guilty of Article 112a. In an attempt to avoid adjudication by a Special Courts Martial, t he record of evidence clearly shows the Applicant signed a pretrial agreement stating that he would “plead guilty to the Additional Charge, Specifications 1 and 2, at Summary Court-Martial (SCM), and waive his rights to an administrative separation (ADSEP) board”. Specifications 1 and 2 were both violations of Article 86 (Absence without leave). Although the Applicant pled not guilty and contended that he was innocent of violating UCMJ Article 112a at his SCM, the judge found that he was guilty. Even if it was found that he was innocent of violating Article 112a, the pre-trial guilty plea, along with the misconduct previously committed by the Applicant that was adjudicated at NJP , meets the merits of Pattern of Misconduct, which can be characterized with an Under Other Than Honorable discharge. The review of the record shows that the Applicant was properly notified of discharge, and discharge properly with no improprieties noted. There is nothing in the record that proves his innocence, nor has t he Applicant submitted any new evidence to support his contention . Therefore , the NDRB must rely upon the presumption of regularity in the conduct of Government affairs. 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 is not eligible for further reviews by the NDRB. The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm . 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 | MD1400875

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