ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20080730
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)	20001117 - 20010715  		Active:   

Period of Service Under Review:
Date of Enlistment:  20010716	Period of Enlistment:   Years   Months	Date of Discharge:  20050110
Length of Service:    Years    Months   25  Days	    Education Level:  	Age at Enlistment:  
AFQT:  59	MOS:  3531	Highest Rank:  	Fitness Reports:  
Proficiency/Conduct Marks (# of occasions):	   () /  ()
Awards and Decorations (per DD 214):  Rifle   (Iraq)     PUC MM LoA

Periods of UA/CONF:  

NJP:  
- 20031216:  Article 111 (Driving a vehicle while impaired by alcohol, BAC .09)
                     Awarded:     Suspended:     Suspension vacated 20030224

SCM:  
- 20021104:  Article 112a (Drug use, wrongfully used cocaine)
                      Sentence:   REST FOP
                      CA action:  Sentence approved and ordered executed 20021106

Civilian Arrest:  1
	- 20041107:  At Mermaid Bar for resisting, delaying and obstructing investigation; $500 bond.

6105 Counseling:  3
- 20040219:  For my admitted illegal drug involvement, cocaine usage identified through unit urinalysis confirmed by
                      Navy Drug Lab JAXFL message R301938z Oct03.

- 20040625:  An administrative separation with an OTH will be suspended until 20050101, unless vacated due to 
                      misconduct.  If no misconduct takes place before 20050101, SNM shall be separated with an Honorable 
                      characterization.

- 20041209:  For not removing brush and vines from the fence surrounding motor pool as told to by a Sgt and Cpl. 
                     You  did not complete this task and was found lying under a tree.  You were also detained by the
                     Jacksonville Police at a local bar for obstructing the officer’s investigation to a call received at the
                     establishment and you are still pending the court date.

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 violations of the UCMJ, Article 111 (Drunken operation of a vehicle) and Article 112a, (Drug use, wrongful use of a controlled substance). 

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

Applicant’s Issues
1.  Employment and Education opportunities
2.  Record of service

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 his discharge should be upgraded based on his record of service which was good apart from a couple periods of misconduct.  Despite a Marine’s prior record of service, certain serious offenses warrant separation from the naval service in order to maintain proper order and discipline.  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 Applicant’s record of service was marred by three retention warnings, one civilian arrest, one NJP, and one SCM for violations of the Uniform Code of Military Justice (UCMJ): Article 111 (Driving under the influence of alcohol) and Article 112a (Drug abuse, wrongful use of a controlled substance), respectively.  These violations are considered serious offenses and the NDRB advises the Applicant certain serious offenses warrant separation from the service 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 awarded the Applicant a SCM.  The Applicant was being administratively separated by reason of misconduct due to drug abuse, which would have been characterized as an “Under Other Than Honorable” discharge.   However, this administrative separation was suspended until 1 January 2005 by the Commanding General, at which time the Applicant would have received an “Honorable” discharge if he would have refrained from any other misconduct.  On 7 November 2004, the Applicant was subject to a civilian arrest, thus vacating the General Officers original suspension on his characterization of discharge.  Due to the continued misconduct of the Applicant he was discharged with an “Under Other Than Honorable Conditions” characterization.  The Applicant presented no evidence or documentation to the Board demonstrating he was not responsible for his actions and conduct, especially when he was retained for military service after an offense which normally results in immediate separation from military service.  The Board determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate.
 
The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, there is no law or regulation, which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service.  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.  Supporting documentation to help support a post service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; 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 company’s or other financial institutions; documentation of a drug free lifestyle; continued higher education and character witness statements.  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 previous in-service misconduct was an aberration and not indicative of the member’s overall character.

Besides the personal statement provided on the DD Form-293, the Applicant provided a current Georgia criminal history check and an Alcohol and Drug Remedial Education Verification document.  The Board commends the Applicant on the progression 
to live a life free of alcohol and drugs and to be a law-biding citizen.  However, to warrant an upgrade to “Honorable” the Applicant’s post service efforts need to be more encompassing.  The Applicant could have produced additional evidence as stated in the above paragraph with the full understanding completion of these items alone does not guarantee an upgrade.  The Board determined based on the limited documentation provided and the circumstances surrounding the situation that an upgrade 
would be inappropriate and the characterization of service received, “Under Other Than Honorable”, was an appropriate characterization considering the length of service, the offer from the Commanding General to suspended the administrative discharge  in return for good conduct, and the nature of the UCMJ and civilian violations involved.

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