ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20080728
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MARCORSEPMAN 

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

Summary of Service

Prior Service:
Inactive: USMCR (DEP) 20030630 - 20040119  		Active:  

Period of Service Under Review:
Date of Enlistment:  20040120         Age at Enlistment:  
Period of Enlistment:   Years   Months	
Date of Discharge:  20070822          Highest Rank:  
Length of Service:    Years    Months   03  Days	  
Education Level:          AFQT:  53	
MOS:  3043     Fitness Reports:         Proficiency/Conduct Marks (# of occasions):   / 
Awards and Decorations (per DD 214):  Rifle  ACM  MM (3)

Periods of UA/CONF:       SPCM:       CC:  

NJP:  
- 20060119:  Article 92 (Failure to obey order or regulation)
                     Article 107 (False official statement)
                     Article 134 (Wrongful interference with an adverse administrative processing by misrepresenting facts to 
                                         1st Lt in an attempt to conceal information relevant to 1st Lt’s investigation).
                     Awarded:        Suspended:  

SCM:  
- 20070524:  Article 112a (Drug use, wrongful use of controlled substance)
                      Sentence:  No further information found in record.  [Extracted from Commanding Officer letter dated  
                                        20070621]

6105 Counseling:  
- 20051010:  For your 1st assignment to the Marine Corps Body Composition Program.  Specifically, you failed to 
                      properly maintain your body composition standards as required by MCO P6100.12.  Your actions are 
                      unsatisfactory and not in accordance with the high state of readiness required by the USMC.

- 20051027:  For your assignment to Body Composition Program.  Specifically you failed to properly maintain your
                      body composition standards as required by MCO P6100.12.  Your actions are unsatisfactory and not in 
                      accordance with the high state of readiness required by the USMC.

- 20051031:  For your assignment to Body Composition Program.  Specifically you failed to properly maintain your 
                      body composition standards as required by MCO P6100.12.  Your actions are unsatisfactory and not in 
                      accordance with the high state of readiness required by the USMC.

- 20060224:  For your unsatisfactory performance while assigned to the Marine Corps Body Composition Program.  
                     due to insufficient effort, you have not met your weight/body fat reduction goals as prescribed by the 
                     medical officer.

6105 Counseling (cont):

- 20060511:  For successful completion of your assignment to the Body Composition Program from 20051007 to 
                     20060511.  You have met your weight/body fat reduction goals as prescribed by the medical officer.

- 20070123:  For positive urinalysis confirmed by the Naval Drug Screening Lab, J_, FL on 20070108.  For
                      marijuana (THC) in the amount of 34 mg/ml.

Types of Documents Submitted/reviewed

Related to Military Service:	DD 214:  	Service and/or Medical Record:  		Other Records:  

Related to Post-Service Period:	
	Employment:			Finances:			Education/Training:	
	Health/Medical Records:		Substance Abuse:			Criminal Records:	
	Family/Personal Status: 		Community Service:  		References:  		
Additional Statements From Applicant:  		From Representation:  		From Member of Congress:  

Other Documentation (Describe):  

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.

C.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 112a.

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1.  Veteran’s benefits.
2.  Mitigating circumstances.

Decision

Date:  20081106		Location:  Washington D.C.	 Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  MISCONDUCT.

Discussion

:   either  which the Board cannot form the basis of relief for the Applicant, or  the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum, specifically the paragraph concerning , regarding .

:  ()  .  The Applicant contends he is entitled to a discharge upgrade due to mitigating circumstances which contributed to his misconduct.  Specifically, he contends the death of a family member led to emotional distress which he attempted to assuage through counseling and smoking marijuana.  In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicants record of service is marred by six retention warnings; one NJP for violation of the Uniform Code of Military Justice (UCMJ): Articles 92 (Failure to obey order or regulation), Article 107 (False official statement), and Article 134 (Wrongful interference); and one SCM for violation of Article 112a (Drug abuse).  The NDRB advises the Applicant despite a service member’s prior record of service certain serious offenses, even though isolated, warrant separation from the Navy in order to maintain proper order and discipline.  Violation of Article 112a is one such offense requiring mandatory separation regardless of time in service or grade.  Violations of this policy result in, at a minimum, mandatory processing for an administrative separation which 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 instead opted for an administrative discharge.  While the Applicant may feel his grief was the underlying cause of his misconduct, the record of evidence does not demonstrate the Applicant was not responsible for his misconduct or should not be held accountable for his actions due to the death of a family member. The Board determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service,  Record, Discharge Process and evidence submitted by the Applicant, the Board found 

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe that 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:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the 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.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’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 Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board 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 subsequently is processed for an administrative involuntary separation or is referred to a court-martial for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense 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 Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

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 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