ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20080904
Characterization of Service Received:  
Narrative Reason for Discharge:  COMMISSION OF A SERIOUS OFFENSE
Authority for Discharge:  MARCORSEPMAN 

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

Summary of Service

Prior Service:
Inactive: USMCR (DEP)	19950426 - 19950723  	Active:		19950724 - 20000512  
									20000513 - 20040112  

Period of Service Under Review:
Date of Enlistment:  20040113	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20070815	Highest Rank:  
Length of Service:    Years    Months   03  Days
Education Level:  	AFQT:  67
MOS:  6433/9916/8411/9928/6434
Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle   (3)  MCRR  (2)    LoA

Periods of UA/CONF:      NJP:      SCM:      SPCM:      Retention Warning Counseling:  

CC:  
- 20060810:  Offense:  Possession of a controlled substance, use of a controlled substance (misdemeanor),
                      Sentence:  Probation for 6 months, fined $700.00.  Expunged after successfully completing probation
                      period.

Administrative Corrections to the Applicant’s DD 214

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

	  “MISCONDUCT”

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:		Substance Abuse:			Criminal Records:	
	Family/Personal Status: 		Community Service:  		References:  		
              Additional Statements: 
                             From Applicant:  	From Representation:         	From Congress member:    

	Related to Post-Service Period (cont):        
	
	Other Documentation:  

Pertinent Regulation/Law

A.  Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 
1 September 2001 until Present.

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 (Drug use, wrongful possession of a controlled substance).

 

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

Applicant’s Issues
1.  Wrongfully charged. 
2.  Record of service.

Decision

Date:  20090114		   Location: Washington D.C.	 Representation: 

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  COMMISSION OF A SERIOUS OFFENSE.

Discussion

:  ()  .  The Applicant contends he was wrongfully charged with intent to distribute a controlled substance, cocaine.  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 a civilian conviction in connection with the distribution and use of a controlled substance, to wit: cocaine.  The Applicant, through his attorney, plea-bargained the distribution charge down to use of a controlled substance charge.  He received a sentence of 6 months probation and a $700.00 fine, which he was later granted an expunged record after successfully completing his probation period. 

Per paragraph 6210.6 of the Marine Corps Separation Manual, a Marine who commits a Serious Offense can be separated from the Marine Corps and awarded an “Under Other Than Honorable Conditions” discharge with or without a conviction in a civilian court, providing that a preponderance of the evidence at an Administrative Separation Board assigns guilt to the accused.  The Applicant appeared before the Administrative Separation Board on 9 May 2007 where it was determined the allegations the Applicant sold cocaine was supported by a preponderance of the evidence, and it was recommended that he be administratively separated from the Marine Corps with an “Under Other Than Honorable Conditions” discharge.  The Applicant does not provide any documentation or evidence to support his claim he was wrongfully charged.   While the Applicant provided numerous letters of reference stating his character, none prove he was wrongfully charged by civilian authorities for distribution and use of illegal drugs.  The Board determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate.  

:  ()  .   The Applicant contends his discharge should be upgraded based on his record of service which was good apart from a single period of misconduct.  For the edification of the Applicant, despite a Marine’s prior record of service certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  As stated above, the Applicant had a civilian conviction for distribution and use of cocaine.  Through use of an attorney and plea-bargaining the distribution charge was reduced to use of a controlled substance only and the Applicant was subject to probation and a fine.  

While the Applicant’s military record as a whole, notwithstanding the civilian drug charge, may be outstanding, the fact is the civilian charge blemishes the record of service during the enlistment period in question; which is the period the discharge characterization is based.  The Applicant has requested an upgrade to his discharge characterization to “Honorable”.  When the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under “Honorable” conditions.   An “Under Other Than Honorable Conditions” discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.   The Board determined the Applicants civilian charge and conviction for his drug misconduct was a severe departure from the conduct expected of a Marine with his experience level 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.  Documentation to help support a post service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificate (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; attending 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 previous in-service misconduct was an aberration and not indicative of the member’s overall character.

Besides the Applicants statement attached to the DD Form 293, he provided many glowing references of his achievements.   The Board applauds the Applicant for his success in completing school and finding a quality job.  However, to warrant an upgrade 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.  

 Should the Applicant feel his post service conduct becomes substantial enough to warrant a personal appearance, there are organizations, such as the American Legion, willing to provide guidance to assist former service members in their efforts to obtain a discharge upgrade.  

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, 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