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)      20071227 - 20080123     Active: 

Period of Service Under Review:
Date of Current Enlistment: 20080124     Age at Enlistment:
Period of Enlistment: Years Months
Date of Discharge: 20120123      Highest Rank:
Length of Service: Year(s) Month(s) 00 Day(s)
Education Level:         AFQT: 88
MOS: 3531
Proficiency/Conduct Marks (# of occasions): / Fitness Reports:

Awards and Decorations (per DD 214):     Rifle

Periods of UA/CONF:

NJP:

- 20080822:      Article On or about 20080820 drove a motorcycle without a valid license or permit
         Awarded: Suspended:

- 20100511:      Article From 0445 20100423 until 0730 20100423
         Article Wrongfully departed motor pool in his POV instead of taking a tactical vehicle for a supply run as directed
         Awarded: Suspended: RESTR

SCM:

- 20120109:      Article 112a (Wrongful use, possession, etc. of controlled substance) On or about 20110721 did wrongfully use Cocaine.
         Sentence:
         CA: RIR E-1, FOP

SPCM:

CC:

- 20110520:      Offense: Driving while Intoxicated (Information gained from Page 11 Counseling)
         Sentence: Suspended driving privileges, 24 hours of community service, $373 fine.

Retention Warning Counseling:

- 20100514:      For Article 86, Unauthorized Absence. On 20100423 failed to be at appointed place of duty. Battalion hike formation.

- 20100514:      For NJP for violation of Articles 86 and 92.

- 20110208:      For Violation of Article 86, Unauthorized Absence. At 0515 on 20110204 failed to show at appointed place of duty.

- 20110620:      For NJP for violation of Articles 92. Convicted in Pender County Judicial System for DWI.

- 20110810:      For Violation of Article 112a, Wrongful use, possession, etc. of controlled substance. Specifically on 20110804 SNM tested positive for Cocaine.

- 20110909:      For pattern of misconduct which has resulted in 4 formal counseling’s and multiple verbal counseling’s on Article 86 in the last 18 days.

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. Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present, Paragraph 1005, DISCHARGE FOR EXPIRATION OF ENLISTMENT OR FULFILLMENT OF SERVICE OBLIGATION .

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 innocent and that there was a break in the chain of custody.
2.       The Applicant contends that his PRO CON marks were improperly lowered causing his discharge to be changed from Honorable to General (Under Honorable Conditions).
3.       The Applicant contends he had a mental health issue and that the drugs he was prescribe contributed to his misconduct.

Decision

Date: 20150709           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 86 (Absence without leave), and Article 92 (Failure to obey order or regulation, 2 Specifications); and for of the UCMJ: Article 112a (Wrongful use, possession, etc. of controlled substance). The Applicant had one Civil Conviction for driving while intoxicated. The Applicant also had a pre-service drug waiver for using marijuana prior to entering the Marine Corps, and acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 10 December 2007. Based on the Article 112a violation, processing for administrative separation is mandatory. The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board or a General Court-Martial Convening Authority review. The Record does reflect the Applicant completed his required active service. Characterization of service at discharge is the recognition of a service member’s performance and conduct during a period of enlistment and is not necessarily dependent upon the narrative reason for separation. The Applicant was discharged with a General (Under Honorable Conditions) characterization of service.

As a result of the Applicant’s claim that a MENTAL HEALTH DIAGNOSIS impacted their discharge, and in accordance with U.S. Code, Title X, Section 1553 (e)(2), the Naval Discharge Review Board included a member who is a clinical psychologist or psychiatrist, or a physician with special training on mental health disorder. The Applicant’s service record documents the Applicant was diagnosed with anger management and mood disorder while serving in the armed forces.


: (Decisional) () . The Applicant contends he was innocent and that there was a break in the chain of custody. The service record is incomplete. By the Applicant’s own statements, he opted to accept the administrative separation as the date for the court martial was approaching. If the Applicant felt he was mistakenly charged with a crime, 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 defense against the charges. The Applicant submitted no evidence to support his contention; therefore, the NDRB must rely upon the presumption of regularity in the conduct of Government affairs. Relief denied.


: (Decisional) () . The Applicant contends that his PRO CON marks were improperly lowered causing his discharge to be changed from Honorable to General (Under Honorable Conditions). The Applicant’s service record was incomplete, and the Applicant did not provide sufficient evidence beyond his unsupported statement for the NDRB to find that Command improperly lowered the Applicant’s PRO/CON marks; therefore, the NDRB relied upon presumption of regularity of governmental 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. 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.

: (Decisional) () . The Applicant contends he had a mental health issue and that the drugs he was prescribe contributed to his misconduct. The NDRB determined that the Applicant was responsible for his conduct and that he should be held accountable for his actions. After an exhaustive review, the NDRB determined that the Applicant’s Mental Health issues did not warrant further mitigation. 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 GENERAL (UNDER HONORABLE CONDITIONS) 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: 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.

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