ex-, USMC

Current Discharge and Applicant’s Request

Applicant’s Request:     Characterization change to:
         Narrative Reason change to:

Summary of Service

Prior Service:
Inactive:        USMCR (DEP)      20000911 - 20010522     Active: 

Pre-Service Drug Waiver:

Period of Service Under Review:
Date of Current Enlistment: 20010523    Age at Enlistment:
Period of Enlistment: Years Months
Date of Discharge: 20050413     Highest Rank:
Length of Service: Year(s) Month(s) 22 Day(s)
Education Level:        AFQT: 61
MOS: 0121
Proficiency/Conduct Marks (# of occasions): () / ()   Fitness Reports:

Awards and Decorations (per DD 214):     Rifle LoA

Periods of CONF:

NJP:

- 20040115:      Article (Absence without leave)
         Awarded: Suspended: FOP [Extracted from Commanding Officer’s administrative remarks; vacated the suspended portion from a previous NJP and you being reduced to PFC, dated 20040711]

- 20040817:      Article (Wrongful use, possession, etc. of controlled substances Marijuana 39 ng/ml)
         Awarded: Suspended:

- 20050224:      Article (Absence without leave) 20050129 – 20050130 2 days 20050316 – 20050323 7 days
         Awarded: Suspended:

SCM:

SPCM:

CC:

Retention Warning Counseling:

- 20021119:      For being UA from 0730 to 0820 on 20021107, 0730 to 0920 on 20021115 and morning muster at 0700 on 20020721.


- 20030707:      For violations of Article 86 and 92 of the UCMJ, by failing to report to your work section on time as directed by Cpl T then known to you to be your section NCOIC.

- 20031117:      For tardiness to appointed place of duty, lack of maturity, and poor judgment.

- 20040711:      For violation of Article 92 of the UCMJ, by operating a privately owned vehicle aboard MCB Camp Lejeune while your driver license is suspended by the state of North Carolina and Louisiana, in addition you have been counseled numerous times by your chain of command about being U.A. from your appointed place of duty.

- 20040822:      For violation of Article 112a, wrongful use of a controlled substance, in that Pvt J has a positive urinalysis for THC (N/G 39).

Administrative Corrections to the Applicant’s DD 214

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

         “03 10 22”

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 contends his discharge was improper because the command did not follow discharge regulations.
2. The Applicant contends the punishment was unduly severe in relation to the gravity of the Applicant’s offenses.
3. The Applicant contends his command abused its authority when it elected to discharge the Applicant with only one month
left on his contract.
4. The Applicant contends relief is warranted because it is an injustice for him to continue to suffer the adverse consequence
for his misconduct.
5. The Applicant contends his misconduct was minor or isolated.
6. The Applicant contends that he was so close to finishing his contract that it was unfair to give him an Under Other than
Honorable Discharge.
7. The Applicant contends his command could have allowed him to use terminal leave since he had sufficient time on the
books.
8. The Applicant contends that his in service conduct merits consideration for an upgrade.
9. The Applicant contends his post service conduct merits consideration for an upgrade.
10. The Applicant contends he was having difficulty adjusting to state-side duty after he returned from overseas and that should
be considered as mitigation for his misconduct.

Decision

Date: 20141230           Location: Washington D.C.        Representation:

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 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 6105 counseling warnings, for of the Uniform Code of Military Justice (UCMJ): Article (Absence without leave, ), Article (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 7 SEPTEMBER 2000. Based on the Article 112a violation, processing for administrative separation is mandatory. When notified of administrative separation processing using the procedure, the Applicant rights to consult with a qualified counsel, submit a written statement, and request an administrative board.

: (Decisional) () . The Applicant contends his discharge was improper because the command did not follow discharge regulations. The NDRB presumed regularity in governmental affairs in that the Separation Authority and Staff Judge Advocate review of the discharge package ensured that the Applicant was afforded all of his administrative rights pursuant to the separation process. The Applicant did not submit any documentation to rebut any presumption of regularity in governmental affairs by the NDRB. The separation code on the Applicant’s DD Form 214 indicates that the Applicant elected to waive his rights to a discharge hearing board. Relief denied.

Issues 2-3: (Decisional) () . The Applicant contends the punishment was unduly severe in relation to the gravity of the Applicant’s offenses. The Applicant also contends his command abused its authority when it elected to discharge the Applicant with only one month left on his contract. While other members of his unit may have been charged with the same or similar offenses, each case must stand on its own merits. The Commanding Officer is allowed to consider matters for extenuation and mitigation unique to each individual. Therefore no two cases, no matter how similar, are guaranteed to receive the same punishment. 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 his discharge was improper or inequitable. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. Relief denied.

Issues 4-7: (Decisional) () . The Applicant contends relief is warranted because it is an injustice for him to continue to suffer the adverse consequence for his misconduct. The Applicant contends his misconduct was minor or isolated. The Applicant contends that he was so close to finishing his contract that it was unfair to give him an Under Other than Honorable Discharge. The Applicant contends his command could have allowed him to use terminal leave since he had sufficient time on the books. Certain serious offenses warrant separation from the service to maintain proper order and discipline. Violation of Article 112a 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 command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. Relief denied.

Issues 8-9: (Decisional) () . The Applicant contends that his in service conduct merits consideration for an upgrade. The Applicant also contends his post service conduct merits consideration for an upgrade. After a careful review of the Applicant's post service documentation and official service records, and the facts and circumstances unique to this case, the NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances. Relief denied.

10: (Decisional) () . The Applicant contends he was having
difficulty adjusting to state-side duty after he returned from overseas and that should be considered as mitigation for his
misconduct. The NDRB recognizes that serving in the military is challenging. Most servicemembers, however, serve
honorably and therefore earn their Honorable discharges. In fairness to those servicemembers, commanders and separation
authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. There is no evidence in
the record, nor did the Applicant provide any documentation, to indicate he attempted to use the numerous services available
for servicemembers who undergo personal problems during their enlistment, such as the Navy Chaplain, Medical or Mental
Health professionals, Navy Relief Society, Family Advocacy Programs, or even the Red Cross. The NDRB determined the
Applicant’s personal problems were not mitigating factors in his misconduct. 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