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USMC | DRB | 2014_Marine | MD1401268
Original file (MD1401268.rtf) Auto-classification: Denied
ex-PFC, USMCR
CURRENT DISCHARGE AND APPLICANT'S REQUEST

 Application Received: 20140611
Characterization of Service Received: UNDER OTHER THAN HONORABLE CONDITIONS Narrative Reason for Discharge: MISCONDUCT
Authority for Discharge: MARCORSEPMAN 6210.5 [DRUGS]

Applicant's Request: Characterization change to : GENERAL (UNDER HONORABLE CONDITIONS ) Narrative Reason change to : NONE REQUESTED

SUMMARY OF SERVICE

 Prior Service:
Inactive: NONE          Active: NONE Pre-Service Drug Waiver: NFIR
Period of Service Under Review:
Date of Current Enlistment 20081205      Age at Enlistment: 18
Period of Enlistment: 8 Years 0 Months
Date of Discharge: 20111228      Highest Rank LANCE CORPORAL Length of Service: 03 Year(s) 00 Month(s) 24 Day (s)
Education Level: 12     AFQT: 82
MOS: 0311
Proficiency/Conduct Marks (# of occasions): NFIR I NFIR          Fitness Reports: NOT APPLICABLE Awards and Decorations (per DD 214): Rifle SS NOSM
Periods of UA/CONF: NFIR

NJP: NONE       SCM: NONE       SPCM: NONE CC: NONE     Retention Warning Counseling: NONE



TYPES OF DOCUMENTS SUBMITED/REVIEWED

 Related to Military Service:
DD214:    [X]       Service/Medical Record: [X]

Other Records:   [ ]



Related to Post-Service Period: Employment:      [ ]
Health/Medical Records:          [ ]
Personal Documentation:          [ ]
Department of VA letter:         [ ]
Additional Statements:

Finances:        [ ]
Rehabilitation/Treatment: [ ]
Community Service:       [ ]
Other Documentation:     [ ]

Education/Training:      [ ]
Criminal Records:        [ ]
References:      [ ]

From Applicant:          [ ]
From/To Representation: [ ]      From/To Congress member:         [ ]








DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT
APPLICANT'S ISSUES

 I. The Applicant contends that racial discrimination led to his misconduct.
2. The Applicant contends it was an isolated incident.
3. The Applicant contends transitioning back to civilian life led to his misconduct.

DECISION

 Date: 20141021 DOCUMENTARY REVIEW      Location: WASHINGTON D.C. Representation: NONE

By a vote of 5-0 the Characterization shall remain GENERAL (UNDER HONORABLE CONDITIONS ).
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT.

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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant The Applicant's record of service included no 6105 counseling warnings and no misconduct resulting in nonjudicial punishment or court-martial. However, the record shows the Applicant tested positive for THC on 03 June 2011 during a unit urinalysis. The Applicant subsequently went UA and refused to attend his required drill periods for four months. Based on the drug policy violation, processing for administrative separation is mandatory. When notified of administrative separation processing using the administrative board procedure, the Applicant waived his rights to consult with a qualified counsel, submit a written statement, and request an administrative board.

Issue, 1: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends that racial discrimination led to his misconduct. 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 that he was
discriminated against or treated unfairly. When given the opportunity to bring forth mitigating circumstances at an administrative separation board, the Applicant waived his rights to do so. Regardless, even if the Applicant could show that he was discriminated against or treated unfairly, it would neither amount to a justification nor to a defense for the Applicant's own misconduct. Relief denied.

Issue 2: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends it was an isolated incident. Certain serious offenses warrant separation from the service to maintain proper order and discipline. Violation of the drug policy is one such offense requiring mandatory processing for administrative separation regardless of grade or time in service. This usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The record shows that the Applicant not onl y tested positive for THC, but that he also failed to attend his required drills for at least four months subsequent to his positive urinalysis. Therefore, the NDRB determined that the Applicant's contention has no merit. Relief denied.

Issue 3: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends transitioning back to civilian life led to his misconduct. While the Applicant may feel that his transition was a contributing factor to his misconduct, it does not mitigate his disobedience of the orders and directives that regulate good order and discipline in the Naval Service, demonstrating he wa s unsuitable for further service. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant's summary ' of service, service record
 entries , and discharge process, the Board found the discharge was proper and equitable. Therefore, the awarded
 characterization of service shall remain UNDER OT H ER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain MISCONDUC T . The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his discharge. The Applicant is directed to the Addendum for additional information.

Pertinent Regulation/Law

 A. Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 1 September 2001 until Present.

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 .


















































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 Disabled 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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