ex-, USMC

Current Discharge and Applicant’s Request

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

Summary of Service

Prior Service:
Inactive:        USMCR (DEP)      20040713 - 20040919     Active: 

Pre-Service Drug Waiver:

Period of Service Under Review:
Date of Current Enlistment: 20040920    Age at Enlistment:
Period of Enlistment: Years Months
Date of Discharge: 20070531     Highest Rank:
Length of Service: Year(s) Month(s) 26 Day(s)
Education Level:        AFQT: 42
MOS: 0481
Proficiency/Conduct Marks (# of occasions): () / ()   Fitness Reports:

Awards and Decorations (per DD 214):     Rifle Pistol LoA (2)

Period of UA:

NJP:

- 20060616:      Article 92 (Failure to obey order or regulation)
         Awarded: for 60 days Suspended: (30 days)

SCM:

- 20070212:      Article 112a (Wrongful use, possession, etc., of controlled substance, Amphetamine)
         Sentence: (20070712-20070219, 8 days)
         CA: Findings are approved as entered and the sentence is approved as adjudged, except for that part of the sentence extending to confinement in excess of 10 days is suspended for 6 months, at which time, unless sooner vacated, the suspended part of the sentence will be remitted without further action

SPCM:

CC:

- 20060604:      Offense: DUI (Convicted in Japanese Court)
         Sentence: NFIR [Extracted from Commanding Officer’s Letter for Recommendation dated 20070503]

- 20061121:      Offense: DUI (Convicted in Japanese Court)
         Sentence: NFIR [Extracted from Commanding Officer’s Letter for Recommendation dated 20070503]

Retention Warning Counseling:

- 20060616: For your Battalion Level NJP on 20060616 for a violation of Article 92 of the UCMJ, specifically, on or
about 0001 on 20060604, you did violate MCBJO 1050.6 by allowing a red liberty card holder to remain off base past midnight.

- 20070404:      For your Summary Court Martial of 20070220 for violation of UCMJ Article 112a

- 20070502:      For violation of Article 111 and 92 of the UCMJ, specifically, on 20060604 on or around 0415, without authority, you disobeyed a lawful order and operated a privately owned vehicle while intoxicated (.13 BAC)

- 20070502:      For violation of Article 111 and 92 of the UCMJ, specifically, on 20061121 on or around 0240, without authority, you disobeyed a lawful order and operated a privately owned vehicle while intoxicated (.11 BAC) and for driving with a suspended revoked license.

NDRB Documentary Review Conducted (date):        20080214
NDRB Documentary Review Docket Number:   MD08-00167
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.

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:        

Types of Witnesses Who Testified

         Expert:           Character:      

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 a change in his RE-code in order to reenlist into the Armed Forces.
2.       The Applicant seeks an upgrade to enhance employment opportunities.
3. The Applicant contends his in-service performance and conduct warrants an upgrade.
4. The Applicant contends his characterization should be upgraded and narrative reason should be changed because his discharge was too harsh compared to others involved in the same incident.
5. The Applicant contends his violation of UCMJ Article 112a was never properly shown because there was no evidence of illegal drug use.
6. The Applicant contends an upgrade is warranted because he feels the evidence used at his separation was lacking to support his characterization of service and narrative reason.
7. The Applicant contends his post-service conduct warrants an upgrade to Honorable.

Decision


Date: 20150609           Location: Washington D.C.        Representation:


By a vote of the Characterization shall .
By a vote of the Narrative Reason shall .
By a vote of the Reenlistment Code 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 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 and for of the Uniform Code of Military Justice (UCMJ): Article (Failure to obey order or regulation); and for of the UCMJ: Article (Wrongful use, possession, etc., of controlled substance). The Applicant a pre-service drug waiver for using marijuana forty times prior to entering the Marine Corps, acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on (12 July 2004). 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.

: (Nondecisional) The Applicant seeks a change in his RE-code in order to reenlist into the Armed Forces. Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code. 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.

: (Nondecisional) The Applicant seeks an upgrade to enhance employment opportunities. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.


: (Decisional) () . The Applicant contends his in-service performance and conduct warrants an upgrade. Based on the Applicant’s record of service, the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service, and the awarded characterization of service was warranted. 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 Marines and Sailors who served honorably, Commanders and Separation Authorities are tasked to ensure that undeserving servicemembers receive no higher characterization than is due. 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.

Issue 4: (Decisional) () . The Applicant contends his characterization should be upgraded and narrative reason should be changed because his discharge was too harsh compared to others involved in the same incident. 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. Relief denied.

Issue 5: (Decisional) () . The Applicant contends his violation of UCMJ Article 112a was never properly shown because there was no evidence of illegal drug use. The Applicant’s service record clearly documents he entered a pretrial agreement on 3 January 2007 to plead guilty to illicit drug use and accepted punishment at a summary court-martial in order to prevent the charges being referred to a special court-martial. A guilty plea is the strongest form of guilt. If the Applicant felt he was wrongfully charged with violating the zero tolerance drug policy, it was his obligation to contest those charges at the time they were made. Relief denied.

Issue 6: (Decisional) () . The Applicant contends an upgrade is warranted because he feels the evidence used at his separation was insufficient to support his characterization of service and narrative reason. 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 there was a lack of evidence to prove his violation of the zero tolerance drug policy. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. Relief denied.

Issue 7: (Decisional) () . The Applicant contends his post-service conduct warrants an upgrade 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 evidence of continuous employment and thirteen 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 violations. 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 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