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

Docket No. MD06-01157

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

ex-Pvt, USMC
MD06-01157

Current Discharge and Applicant’s Request:

Application Received:  				20060829
Characterization of Service:			UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Separation:			MISCONDUCT
Discharge Authority:				MARCORSEPMAN 6210.5
Last Duty Assignment/Command at Discharge:	hqbn 2dmardiv camlej nc

Applicant’s Request:	
	Characterization change to:		GENERAL (UNDER HONORABLE CONDITIONS)
	Narrative Reason change to: 		NONE REQUESTED
	Review Requested:			DOCUMENTARY REVIEW
Representation:  					STATE VETERAN’S AFFAIRS REP

Applicant’s issues:
1.  Processed for separation after my original EAS date.
2.  Unjust punishment and unfair discharge characterization due to record of service.
3.  Post service.

Decision:

By a vote of 5-0 the Characterization shall change to GENERAL (UNDER HONORABLE CONDITIONS)
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT  

Date of Decision:					2007070802
Location of Board:				Washington D.C.
Complete Service Record:				YES
Complete Medical Record:			YES
Complete Discharge Package:			YES
Regarding propriety, the Board found the discharge:	IMPROPER
Regarding equity, the Board found the discharge:	EQUITABLE

Issue 1 (Propriety).    The Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service.  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 NDRB reviewed all of the available records, supporting documents, facts, elements of discharge, evidence submitted by the Applicant, and circumstances unique to this case.  A particular circumstance was the administrative discharge procedure that was completed after the Applicant’s end of obligated service date.  A general discharge upon EAS should be awarded for Marines with average proficiency marks below 3.0 and average conduct marks
below 4.0.  An honorable characterization of service may be granted if the Marine’s service is otherwise so meritorious that any other characterization would clearly be inappropriate.  The NDRB noted that there was an impropriety in the Applicant’s discharge action and is convinced that this procedural error was prejudicial to the Applicant.  Therefore an inequity in the characterization of the Applicant’s service did occur.  

Issue 2 (Equity).  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 did not dispute his drug use.  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.  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.  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. The Applicant’s service was marred by two retention warnings and violations of the Uniform Code of Military Justice (UCMJ), Article 86, 92, and 112a.  Violation of UCMJ Articles 92, Failure to obey order, regulation and Article 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.  

Issue 3 (Equity).   The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, to the extent that 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.  The Applicant provided three character references and one letter from his current employer as documentation of post-service accomplishments.  The Applicant's efforts need to be more encompassing.  For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, evidence of drug free existence, and certification of non-involvement with civil authorities.  The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge.   
  
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.

Summary of Service:

Prior Service:
Inactive: USMCR (DEP)		20010324 - 20010923    COG

Period of Service Under Review:
Date of Enlistment:  				20010924
Years Contracted:  				4;   Extension:  NONE. 
Date of Discharge:				20051028
Length of Service
	Active:					04  Yrs  01  Mths  04  Dys  (Does not exclude lost time)  

Time Lost During This Period:			55
Days UA:  					25 
Days Confinement:  				30
	
Education Level:  				12
Age at this Enlistment:  				18
AFQT:  						38
MOS:						3531
Highest Rank:					LANCE CORPORAL

Proficiency/Conduct marks (# of occasions):		4.0 (1)/2.9 (1)

Awards and Decorations (as listed on the DD Form 214):	MARINE CORPS GOOD CONDUCT MEDAL, COMBAT ACTION RIBBON (2nd AWARD, IRAQ CAMPAIGN MEDAL, GLOBAL WAR ON TERRORISM MEDAL, SEA SERVICE DEPLOYMENT RIBBON (3^rd AWARD), GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL, NATIONAL DEFENSE SERVICE MEDAL, PRESIDENTIAL UNIT CITATION, RIFLE QUALIFICATION BADGE.   

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

20010322:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

20020826:	NJP for violation(s) of UCMJ:
	Article 86:  On or about 0730, 20020726 became absent from his appointed place of duty until on or about 1030, 20020819 (25 days).
	Article 92:  On or about 1200, 20020728 fail to obey a lawful order via telephone by SSgt to return immediately.
	Award:  Forfeiture of $289.00 for 1 month, restriction and extra duty for 14 days.  Forfeiture of $289.00 and restriction for 14 days suspended for 3 months.
	Not appealed.

20020904:	Counseling:  Advised of deficiencies in performance and conduct concerning my violation of Article 86 of the UCMJ.  Specifically my period of unauthorized absence from 0730 on 20020726 until 1030 on 20020819.  I proceeded UA due to family problems with my parents at home.  I did not make it known to my chain of command that these personal problems existed prior to going into UA status.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

20021002:	Counseling:  Advised of deficiencies in performance and conduct.  My failure to return from special liberty at the directed time of accountability muster.  Specifically on 0800 20021012.  The Columbus Day special liberty period commenced with a company formation during which the Company Commander directed all personnel to ensure that they were present at return accountability muster at 1630 on 20021015.  I failed to do so.  I offered nothing which was accepted as a matter of mitigation or extenuation and was found to be in violation of Article 92 of the UCMJ.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

20050602:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 20050527, tested positive for THC.

20050920:	Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 112a:  On or about 20050621, wrongfully use marijuana.

20050920:	Charges referred to summary court-martial.

20050921:	Applicant refused treatment from Substance Abuse Rehabilitation Program, Naval hospital Camp Lejeune.

20050923:	Summary Court-Martial.
	Charge: Violation of the UCMJ, Article 112a:
	Specification:  On or about 20050721, wrongfully use marijuana.
	Finding: To Charge and the specification thereunder, guilty.
	Sentence: Forfeiture of $823.00, confinement for 30 days, reduction to E-1.
	CA action 20050923:  Sentence approved and ordered executed.

20050923:	Applicant to confinement at the Camp Lejeune Base Brig.

20051025:	Counseling:  Advised of deficiencies in performance and conduct concerning your wrongful use of controlled substance, THC, per NAVDRUGLAB JACKSONVILLE FL MSG DTD 021813z June 2005.  Necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.  

Elements of Discharge:  [INVOLUNTARY]

Date Notified:					20051005
Basis for Discharge:	MISCONDUCT DUE TO DRUG ABUSE

Least Favorable Characterization:			UNDER OTHER THAN HONORABLE CONDITIONS
Commanding Officer’s Intended Recommendation:	UNDER OTHER THAN HONORABLE CONDITIONS

Date Applicant Responded to Notification:		20051005
Rights Elected at Notification:
	Consult with Counsel			ELECTED
	Obtain Copies of Documents		ELECTED
	Submit Statement(s) (date)			ELECTED  (20050920)
	Administrative Board			WAIVED

Commanding Officer Recommendation (date):	UNDER OTHER THAN HONORABLE CONDITIONS  (20051011)
SJA review (date):				SUFFICIENT IN LAW AND FACT  (20051020)
Separation Authority (date):	COMMANDING GENERAL, 2D MARINE DIVISION (REAR) II MARINE EXPEDITIONARY FORCE (20051025)
Narrative Reason directed:				MISCONDUCT DUE TO DRUG ABUSE
Characterization directed:				UNDER OTHER THAN HONORABLE CONDITIONS
Date Applicant Discharged:			20051028

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 Under Review:
	Service/Medical Record:				8
	Other Period of Service:				0
       Related to Post-Service Period:
	Community Service:				0
	Education:					0
	Employment:					1
	Health/Medical:					0
	Character Statements:				5
	Criminal Records Checks:				0
	Additional Statements from Applicant:		2
        Other Documentation (Describe Below)			0

        Total Number of Pages:				16

 
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.

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 Yard DC  20374-5023