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USMC | DRB | 2014_Marine | MD1401438

Original file (MD1401438.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20140721

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to: Completion of required active service

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       20101004 - 20101212     Active:

Pre-Service Drug Waiver:

Period of Service Under Review:
Date of Current Enlistment: 20101213     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20110824      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 12 D a y ( s )
Education Level:        AFQT: 76
MOS: 2100
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:

- 20110413 :      Article (Wrongful use, possession, etc. of controlled substances C ocaine 2594 ng )
         Awarded: Suspended:

SCM:     SPCM:

CC:

- 20110816 :       Offense: Driving while intoxicated (DWI), level 4 with a blood alcohol content (BAC) level of .15 on 20110815 , a violation of Article 111 of the UCMJ. [Extracted from the Commanding Officer’s Administrative Remarks (1 070) counseling, dated 20110816 ]

Retention Warning Counseling :

- 20110412 :       For violation of UCMJ Article 112a. You wrongfully and willingly used cocaine (2594 ng) over your last weekend during boot camp leave.

- 20110816 :       For civil conviction on 15 August 2011. Specifically, d riving while intoxicated (DWI), level 4 with a blood alcohol content (BAC) level of .15 on 20110815 , a violation of Article 111 of the UCMJ. [Extracted from the Commanding Officer’s Administrative Remarks (1070) counseling , dated 20110816] .

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 his discharge is improper because the Applicant’s pre-service drug waiver was an issue in determining his Administrative Separation Board hearing.
2.       The Applicant contends his discharge is improper because the Recorder for his Administrative Separation Board acted improperly by influencing the Board’s decision.
3.       The Applicant contends his pre-service, and post-service conduct warrant consideration for an upgrade of his discharge to Honorable.
Decision

Date : 20 1 4 1021          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 his discharge met the pertinent sta ndards 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; cocaine, of 2594 ng/ml ) ; and civilian conviction for driving under the influence of alcohol with blood alcohol content of 0.15 on 15 August 2011. The Applicant a pre-service drug waiver for using marijuana 60 times prior to entering the Marine Corps, acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 29 September 2010 . 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 his rights to consult with a qualified coun sel, submit a written statement , and request an administrative board . On 12 July 2011, an Administrative Separation Board convened and determined by unanimous vote that a preponderance of evidenced proved the Applicant’s illegal drug abuse, that the Applicant should be administratively separated from the Marine Corps, and that the Applicant’s characterization of service should be Under Other Than Honorable Conditions. The Applicant was discharged on 24 August 2011 for misconduct (drug abuse).

: (Decisional) ( ) . The Applicant contends his discharge is improper because the Applicant’s pre-service drug waiver was an issue in determining his Administrative Separation Board hearing . The Applicant, with counsel, when notified of the command’s intention to administratively separate the Applicant for reason of drug abuse, requested to waive his right to an administrative board on the condition that an administrative discharge under any characterization of service be suspended or, in the alternative, that he be retained in the Marine Corps. The Applicant contends that counsel for the government, wrongly, recommended that the Applicant’s request to waive his right to an administrative board be denied because the Applicant had a pre-service marijuana enlistment waiver for use of marijuana 60 times. It is proper for the government’s counsel to make recommendations on legal issues ; however, it is the Separation Authority that makes final determinations based on the good order and discipline of the command, and regul a tions concerning administrative discharge. The Applicant tested positive for cocain e on a urinalysis test upon arriving at the School of Infantry from boot camp leave. Although the Applicant attempted to avoid separation from the Marine Corps by requesting an agreement from the Separation Authority to waive the Applicant’s right to a Board hearing in return for a suspension of his discharge, or retention in the Marine Corps, it was not in the interest of the Separation Authority to grant the Applicant’s request. Therefore, the Separation Authority properly convened a Board to hear the facts and make recommendations. After the Board had heard the facts in the Applicant’s case, the Board unanimously determined a preponderance of evidence supported the Applicant’s wrongful use of drugs, and recommended the Applicant be separated with Under Other Than Honorable Conditions discharge, and recommended no suspension of the discharge be granted. The Separation Authority agreed with the Board’s finding and recommendations. The Applicant’s pre-service drug waiver was not a factor in determining the characterization of the Applicant’s discharge. The NDRB determined the discharge was proper and equitable as issued. Relief denied.

: (Decisional) ( ) . The Applicant contends his discharge is improper because the Recorder for his Administrative Separation Board acted improperly by influencing the Board’s decision. The Applicant states that the Recorder acted like a prosecutor on the Board and abused his authority to ensure a fair hearing. There is no evidence in the record, nor did the Applicant provide any evidence that the Administrative Board was influenced to unfairly determine evidence of the Applicant’s drug use, and administrative separation with Under Other Than Honorable Conditions discharge. The Board’s senior member was a Marine Corps Major, and one member of the Board was a Marine Corps Captain, both outranked the Recorder who was a Marine Corps First Lieutenant. The NDRB determined the Applicant’s issue was without merit, and not supported by the Applicant’s record. Relief denied.

: (Decisional) ( ) . The Applicant contends his pre-service, and post-service conduct warrant consideration for an upgrade of his discharge to Honorable. 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 volunteer work with a public charity , and nine character references. 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. To warrant an upgrade, the Applicant’s post-service efforts need to be more encompassing. The Board determined that 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 and UCMJ violation of wrongful drug abuse . 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 remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain MISCONDUCT.

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 | MD1401438

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