ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20090819
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)	20010314 - 20010326  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20010327	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20040615	Highest Rank:  
Length of Service:    Year(s)    Month(s)  20  Day(s)
Education Level:  	AFQT:  39
MOS:  0121
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle    Kosovo     LoA

NJP:  

- 20021105:	Article  (UA), 4 specifications
	Specification 1: Absent from appointed place of duty 0700-0000, 20021013
	Specification 2: Absent from appointed place of duty 1000-1600, 20021014
	Specification 3: Absent from appointed place of duty 0600-0945, 20021015
	Specification 4: Absent from appointed place of duty 1600-0000, 20021020
	Article 91 (Failure to obey order)
	Awarded:    Suspended:  

- 20031031:	Article  (UA)
	Article  (Willfully disobeyed the order by driving without first showing his drivers license)
	Article  (Violated BO P5560.2K by driving on a suspended Tennessee state drivers license)
	Article  (False official statement)
	Article  (Operate a vehicle while drunk)
	Awarded:      Suspended:  

- 20040419:	Article  (Drugs - cocaine)
	Awarded:    Suspended:  

SCM:  

- 20040210:	Article  (UA), 3 specifications
	Specification 1: Failure to go to appointed place of duty - alcohol rehabilitation treatment
	Specification 2-3: Failure to go to appointed place of duty - barracks for accountability check-in
	Sentence:  (20040210-released date NFIR)  

SPCM:  

CC:  

Retention Warning Counseling:  

- 20020408:	For your recent disobedience to lawful orders, your continued lackadaisical attitude in regards to your work ethic and your making false statements in regards to switching duties without notifying your SNCOIC.  These incidents are poor examples of what a Marine stands for and go completely against what our core values of Honor, Courage, and Commitment are.

- 20021003:	For being UA from your appointed place of duty which was the messhall.  Instead of being at work, you were found in your rack.  You claim no one woke you up.  Your inaction and excuse as to why you were not at work were extremely lame.  There was no excuse.  You have also had your liberty cut short due to your repeated tardiness and disappearance during working hours.  You lack of responsibility, judgment, and lackadaisical attitude have demonstrated your immaturity and lack of reliability and dependability.  You knew where you were supposed to be and when, but chose not to go.  By failing in your responsibility to go to work, others had to pull your workload as well as their own.  This type of attitude and behavior cannot and will not be tolerated.

- 20031104:	For misconduct, specifically, my recent NJP for violations of Articles 86, 90, 92, 107 and 111 of the UCMJ held on 20031031.

- 20040517:	For misconduct, specifically, my recent NJP for violation of Article 112a of the UCMJ held on 20040319.

- 20040517:	For operating a vehicle while under the influence of alcohol on 20031024 and was cited for this infraction by the MCAS New River Military Police.  Because of this incident you were referred to the Alcohol Treatment Facility on 20031119 for evaluation and it was determined that you are alcohol dependent.  On 20040112, you reported to the Substance Abuse Rehabilitation Program for treatment.  On 20040120, you refused to continue treatment and were subsequently dropped from treatment as an alcohol treatment failure due to your refusal.  Your actions as a Marine are unsatisfactory and are a total disregard to good order and discipline.

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:	

	Other Documentation:	

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.	Applicant desires upgrade to expand job opportunities. 
2.	Applicant desires upgrade to take advantage of VA burial options for himself and college education benefits for his daughter.
3.	Applicant contends the positive result from the urinalysis drug test was incorrect, which made his discharge unjust.
4.	Applicant contends he did not know he waived his right to appeal during his administrative discharge processing.
5.	Post-service. 

Decision

Date:  20100826		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 identified three decisional issues for the Board’s consideration.  The Board completed 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;   for  of the Uniform Code of Military Justice (UCMJ): Article  (Absence without leave, 5 specifications), Article  (Willfully disobeying a superior commissioned officer, ), Article  (Willfully disobeying a noncommissioned officer, ), Article  (Failure to obey order or regulation, 1 specification), Article  (False official statements, ), Article  (Drunken driving, ), and Article  (Wrongful use, possession, etc. of controlled substance, ); and   for  of the UCMJ Article  (Unauthorized absence, ).  The Applicant  a pre-service drug waiver for using marijuana  prior to entering the Marine Corps  acknowledged  complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 12 March 2001.  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 desires an upgrade to expand job 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.

:  (Nondecisional) The Applicant desires an upgrade to take advantage of VA burial options for himself and college education benefits for his daughter.  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.

:  (Decisional) ()  .  The Applicant contends the positive result from the urinalysis drug test was incorrect, which made his discharge unjust.  He additionally states in his personal memorandum submitted to the NDRB that “I HAVE NEVER used drugs.”  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.  In reviewing the Applicant’s service and administrative discharge records, the Board noted that the Applicant acknowledged his right to refuse the pending NJP (CO, 24 MEU) after being charged with violation of UCMJ Article 112a due to a positive urinalysis result for cocaine, and instead demanded trial by court martial.  On 19 April 2004, he waived his right to trial and instead chose to accept the NJP process and any resultant decision/finding (i.e., guilty, not guilty, dismissal of charges).  Furthermore, at the conclusion of his NJP, the Applicant acknowledged his right to appeal the NJP finding, and he subsequently waived that right (unit punishment book entry, 19 April 2004).  Lastly, the Applicant was also advised of his right to submit a statement of rebuttal within 5 working days on 17 May 2004 when he was counseled, via service record book Page 11, concerning his violation of UCMJ Article 112a and guilty finding at NJP.  The Applicant chose not to submit a statement nor rebut the counseling.  After consideration of all available documentation to include the Applicant’s enlistment waiver for self-admitted drug use (marijuana use, 1 time), the lack of appeal requests or rebuttal statements by the Applicant, and the decision to waive his right to an administrative separation board, the Board presumed regularity in the conduct of government affairs and found the Applicant did not provide sufficient, credible evidence to the contrary.

Issue 4:  (Decisional) ()  .  The Applicant contends that he did not know he waived his right to appeal during his administrative discharge processing.  In reviewing the Applicant’s service and administrative discharge records, the Board noted that after being notified of processing for administrative discharge on 17 May 2004, the Applicant acknowledged and waived his rights (on 20 May 2004) to consult with counsel, submit a written statement, and request an administrative separation (ADSEP) board.  If he would have exercised his right to the ADSEP board, the Applicant would have retained the right to be represented by counsel; challenge voting members; testify on his own behalf; submit matters of consideration to the board; call witnesses to testify; question all witnesses; and present arguments.  When he waived his right to the ADSEP board, the Applicant agreed to the administrative discharge.  After consideration of all available documentation, the Board presumed regularity in the conduct of government affairs and found the Applicant did not provide sufficient, credible evidence to the contrary.

Issue 5:  (Decisional) ()  .  The NDRB considers post-service conduct in order to determine if the misconduct committed during active duty was indicative of the Applicant's character or an aberration.  However, there is no law or regulation that provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  The Applicant provided documentation that included Accredited Basic Volunteer Firefighter certification; a local newspaper extract covering a local rescue event in which he was a participant; and a personal memo in which he stated he was a volunteer representative for the Iraq War Veterans organization.  The Applicant did not provide any other post-service records such as , , , evidence of a drug-free life style, evidence of financial stability, certification of non-involvement with civil authorities, or college/vocational education transcripts to the Board for consideration.  As a result, an upgrade based on post-service conduct is not warranted.  The Applicant should be aware 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.

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   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, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct. 

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 Disabled 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), 2 Navy Annex, Washington, DC 20370-5100 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