Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: joyce.meeks
Company: NCPB

Docket No. MD06-01001

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

ex-PVT, USMC
MD06-01001

Current Discharge and Applicant’s Request:

Application Received:  				20060719
Narrative Reason for Separation:			MISCONDUCT
Character of Service:				UNDER OTHER THAN HONORABLE CONDITIONS
Discharge Authority:				MARCORSEPMAN 6210.5
Last Duty Assignment/Command at Discharge:	SACO SOI TRNGCMD CAMP LEJEUNE NC

Applicant’s Request:
	Narrative Reason change to: 		NONE REQUESTED     
	Characterization change to:		HONORABLE
	Review Requested:			DOCUMENTARY REVIEW
Representation:  					NONE DESIGNATED

Decision:

Date of Decision:					20070607
The Discharge shall remain:			UNDER OTHER THAN HONORABLE CONDITIONS
						MISCONDUCT
Regarding propriety, the Board found the discharge:	PROPER
Regarding equity, the Board found the discharge:	EQUITABLE
Vote (characterization/reason)			UNANIMOUS/UNANIMOUS 
Location of Board:				Washington D.C.
Complete Service Record:				YES
Complete Medical Record:			NO
Discharge Package Complete:			YES

Summary of Service:

Prior Service:
Inactive: USMCR (DEP)				20030911 -20040809	COG
Active:   NONE		               		     
Period of Service Under Review:
Date of Enlistment:  				20040810
Years Contracted:  				4;  NO EXTENSION      
Date of Discharge:				20050713
Length of Service:				00  Yrs  11  Mos  04  Days

Does not exclude lost time, if any.

Time Lost During This Period:			DAYS UNAUTHORIZED ABSENCE  6
						        
Education Level:  				12
Age at this Enlistment:  				18
AFQT:  						40
MOS:						9900
Highest Rate/Rank:				PVT

Performance Evaluation Averages (number of marks):
Proficiency / Conduct:			3.0 (3)	3.0 (3)
	
Awards and Decorations (as listed on the DD Form 214):
MARKSMAN RIFLE BADGE, NATIONAL DEFENSE SERVICE MEDAL

Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

20050131:	NJP for violation(s) of UCMJ:
	Article 86:  UA 1745, 20050123 - 1230, 20050125 (2 days).
	Article 92:  On 20050123, violated liberty policy by traveling out of the legal liberty limits.
	Award:  Reduced to E-1, forfeiture of $323 for 1 month, restriction and extra duty for 14 days.  Forfeiture suspended for 3 months.
	Not appealed.

20050222:	NJP for violation(s) of UCMJ:
	Article 86:  UA 1800, 20050206 - 1200, 20050209.
	Award:  Forfeiture of $627 for 2 months, restriction for 60 days.
	Not appealed.

20050222:	Retention Warning:  Advised of deficiency (Violation of Article 86: Unauthorized absence from Bravo Company from 1800 on 20050206 to 1200 on 20050209), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

20050414:	Retention Warning:  Advised of deficiency (Broken right ankle.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

20050419:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 20050414, tested positive for THC. 

20050422:	NJP for violation(s) of UCMJ:
	Article 112a:  On or about 20050309 - 20050409, knowingly and wrongfully used marijuana 
	Award:  Forfeiture of $617 for 2 months, restriction for 60 days.
	Not appealed.

20050426:	Counseling:  Advised of deficiencies in performance and conduct (Violation of Article 112a: knowingly and wrongfully use of marijuana.), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.

20050512:	Applicant’s statement admitting drug abuse and his desire not to be retained.  

20050512:	Substance Abuse Rehabilitation Program:
	Applicant evaluated as a result of command referral.  No substance abuse indicated at this time.  Recommendation:  Process applicant for administrative separation.  Refer applicant for treatment.
Applicant signed statement of understanding for substance abuse at a Veterans Administration Medical Center.

20050519:	Applicant request for Voluntary Leave Awaiting Separation approved.

Elements of Discharge:  [INVOLUNTARY]

Discharge Process:				
Date Notified:					20050517
Narrative Reason(s):				MISCONDUCT
Least Favorable Characterization:			UNDER OTHER THAN HONORABLE CONDITIONS
Commanding Officer’s Intended Recommendation:	UNDER OTHER THAN HONORABLE CONDITIONS
Record Supports Narrative Reason:			YES
Date Applicant Responded to Notification:		20050519
Rights Elected at Notification:
Consult with Counsel			WAIVED
Administrative Board			WAIVED
Obtain Copies	  			ELECTED
Submit Statement(s)			WAIVED
Board Date:					not APPLICABLE
			
Recommendation of Commanding Officer (date):	UNDER OTHER THAN HONORABLE CONDITIONS (20050518)
SJA review (date):				YES  (20050616)
Discharge directed by (date):		COMMANDER, MARINE CORPS BASE, CAMP LEJEUNE, NC (2005 MONTH/DAY NOT LEGIBLE)
Narrative reason directed:				MISCONDUCT 
Characterization of directed:			UNDER OTHER THAN HONORABLE CONDITIONS 
Date Applicant Discharged:			20050713 

Additional Information Considered by Board

Type of documentation submitted by the Applicant and considered by the Board
       
       	Document Type					#Pages
       Related to Period of Service:
	Service/Medical Record:				2
	Other Period of Service:				0
       Related to Post-Service Period:
	Community Service:				0
	Education:					0
	Employment:					0
	Health/Medical:					0
	Character Statements:				0
	Criminal Records Checks:				0
	Additional Statements from Applicant:		1
        Other Documentation	 (Describe Below)		0

        Total Number of Pages:				3

Applicant’s Issues, as summarized by the Board:
1.  To be able to join the Reserves.
2.  Unfair discharge characterization because of immaturity at time of offense.

Issue 1:  The Board determined that this Issue is not an issue which can form the basis for relief for the Applicant or that the Board did not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding this issue. 

Decisional Issues:
The Board accepted Issue 2 for consideration.

Issue 2 (Equity). The Applicant contends that his problems are attributed to his immaturity.  While he may feel that this was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.    

 There is credible evidence in the record that the Applicant used illegal drugs.  Mandatory processing for separation is required for Marines who abuse illegal drugs.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  The record indicates that he admitted his drug use and would abuse drugs again when a chance came up.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

When a Marine’s service has been honest and faithful, 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 Applicant’s service was marred by the award of nonjudicial punishment (NJP) on three occasions for violation of the Uniform Code of Military Justice (UCMJ) and three retention warnings.  Violations of UCMJ Articles 92 and 112a are considered serious offenses for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial.  An upgrade to honorable would be inappropriate.  Relief denied
  
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.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.

Minority Opinion

None

Pertinent Regulation/Law

A.  The Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 01 Sep 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, Wrongful use, possession, etc., of a controlled substance and Article 92 Failure to obey order, regulation.

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.  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 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 “PTSD.”  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 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.  

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