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USMC | DRB | 2014_Marine | MD1400970
Original file (MD1400970.rtf) Auto-classification: Denied
ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20140423
Characterization of Service Received: UNDER OTHER THAN HONORABLE CONDITIONS
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)       20090502 - 20091101     Active:  

Pre-Service Drug Waiver:

Period of Service Under Review:
Date of Current Enlistment: 20091102     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20100721      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 19 D a y ( s )
Education Level:        AFQT: 73
MOS: 8011
Proficiency/Conduct M arks (# of occasions): 4.3 (2) / 4.3 (2)          Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP: 1

- 20100609 :      Article 92 ( Failure to obey order or regulation , to wit: SECNAVINST 5300.28D, par 5c, by wrongfully possessing a designer drug, S pice )
         Awarded: Suspended:

SCM:     SPCM:    CC:      Retention Warning Counseling :

Administrative Corrections to the Applicant’s DD 214

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

          “ ”
        
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 not properly notified of separation proceedings .
2.       The Applicant contends the evidence of possession of S pice was illegally obtained.
3.       The Applicant contends there was insufficient evidence of possession of S pice.
 4.       The Applicant contends his right to counsel was violated.
5 .       The Applicant contends his post-service conduct warrants an upgrade.

Decision

Date: 20140814   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 Applicant’s record of service included for o f the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation, to wit: SECNAVINST 5300.28D, par 5c, by wrongfully possessing a designer drug, S pice) . 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 23 April 2009 . Based on the drug policy 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 rights to submit a written statement and request an administrative board .

Issue 1 : (Decisional) ( ) . The Applicant contends he was not properly notified of separation proceedings. The Applicant specifically contends that his notification was not specific enough , therefore, denying him his due process rights and ability to make a well - informed decision whether to waive his administrative board. Additionally, the Applicant contends there are multiple dates of the alleged incident annotated 01 June 2010, on or about 03 June 2010, and 09 June 2010. The record clearly shows the Applicant was found guilty at NJP for his wrongful possession of S pice on or about 03 June 2010 , and the Applicant was notified of separation proceedings for his wrongful possession of S pice on or about 03 June 2010. Therefore, the NDRB determined the recommendation letters referencing 01 June 2010 and a counseling statement referencing 09 June 2010 were immaterial. The Applicant was notified on 14 June 2010 of administrative separation processing for misconduct due to drug abuse. The notification letter specifically states, “The factual basis for the recommendation of drug abuse is your wrongful possession of designer drug ‘ Spice ’ on or about 3 June 2010.” The record clearly shows the Applicant exercised his right to counsel and waived his rights to submit a written statement and request an administrative board . T he NDRB determined the Applicant was properly notified of separation proceedings in accordance with the Marine Corps Separation and Retirement Manual , and he was afforded all of his due process rights. Relief denied.

Issues 2-3: (Decisional) ( ) . The Applicant contends the evidence of possession of S pice was illegally obtained. The Applicant further contends there was insufficient evidence of possession of S pice. The NDRB presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant referenced SECNAVINST 5300.28D, par 5c and the Applicant states that S pice is not mentioned. SECNAVINST 5300.28D, par 5c states, “The unlawful use by persons in the DON of controlled substance analogues (designer drugs), natural substances (e.g., fungi, excretions), chemicals (e.g.,
chemicals wrongfully used as inhalants), propellants, and/or a prescribed or over-the-counter drug or pharmaceutical compound, with the intent to induce intoxication, excitement, or stupefaction of the central nervous system, is prohibited and will subject the violator to punitive action under the UCMJ or adverse administrative action or both. ” Though Spice is not specifically mentioned, its possession with the intent to induce intoxication, excitement, or stupefaction of the central nervous

system is prohibited. Because it was not a controlled substance at the time of the misconduct, the Applicant’s command properly charged him with violating UCMJ Article 92 (Failure to obey an order or regulation) rather than Article 112a (Wrongful use, possession, etc. of controlled substances).

 Other than the Applicant’s personal statement, he provided no evidence that he was denied his “ rights warning ” and his statement alone is not enough to refute the presumption of regularity. Additionally, there is no evidence that there was insufficient evidence of possession of Spice. The record shows the Applicant was found guilty at NJP of wrongfully possessing Spice. All that is required at NJP for a finding of guilt is a preponderance of the evidence that he wrongfully possessed Spice. Lacking any evidence to the contrary, the NDRB presumes the Applicant’s commander properly found him guilty of possessing Spice. Further, t he record of evidence shows the Applicant waived his rights to trial by court-martial and an administrative separation board. If the Applicant felt he was mistakenly charged with a crime or there was a lack of evidence , it was his obligation to contest those charges at the time they were made. During a trial or administrative separation board, he would have had the opportunity to mount a de fense against the charges. Relief denied .

Issue 4: (Decisional) ( ) . The Applicant contends his right to counsel was violated. The Applicant specifically contends that “[he] was repeatedly told that if he sought legal counsel, it would result in a court martial and a dishonorable discharge. All the waivers to legal counsel were circled for [him] by his immediate commander and thereafter initialed by [the Applicant].” The Applicant’s A cknowledgment of R ights dated 14 June 2010 shows the Applicant consulted with counsel and listed his counsel by name. T he NDRB determined the Applicant’s right to counsel was not violated, he received full due process, and his discharge was warranted, proper, and equitable. Relief denied.

5: (Decisional) ( ) . The Applicant contends his post-service conduct warrants an upgrade. The NDRB considers 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. The Applicant provided a personal statement, evidence of a job training program , and evidence of college enrollment . The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum , however, completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration. The Board determined the documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration. The characterization of service received was appropriate considering the length of service , UCMJ violation , and the fact that he had been given a second chance when granted a pre-service drug waiver to enter the Marine Corps . 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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