FOR
ex-PVT, USMC
MD07-00016

Current Discharge and Applicant’s Request:

Application Received:  				20060925
	Characterization of Service:		
	Basis for Discharge:			  due to:  
	Discharge Authority:			MARCORSEPMAN PAR 6210.5
	Duty Assignment/Command at Discharge:	2d assault amphibian battalion

Applicant’s Request:
	Characterization change to:		
	Narrative Reason change to: 		MISCONDUCT  (remove ref to drug abuse)
	Review Requested:			
	Representation:  				
	
Applicant’s Issues:
1.  Reenlistment/reserve service.
2.  Youth and immaturity.
3.  Post service.
Decision:

By a vote of 5-0 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS.	
By a vote of 5-0 the Basis for Discharge shall remain MISCONDUCT.

Date of Decision:					20070816
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:	PROPER
Regarding equity, the Board found the discharge:	EQUITABLE

Issue 1:  The Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding reenlistment issues.  

Issue 2 (Equity):  The Applicant contends that his misconduct while in the Marine Corps was due to immature decisions brought on by family issues affecting him at the time.  Specifically, the Applicant contends that he admitted to using illegal drugs for the sole purpose of obtaining an expeditious discharge from the Marine Corps in order to return home to family.  While the Applicant’s immaturity at the time may have been the underlying reason for his actions, self-admission to drug use is considered “wrongful use of a controlled substance,” punishable under Article 112a of the Uniform Code of Military Justice.  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 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.  The NDRB recognizes that serving in the U.S. Marine Corps is challenging.  Our country is fortunate to have men and women willing to ensure the hardships and sacrifices required in order to serve their country.  When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as under honorable conditions.  However, when significant negative aspects of a member’s conduct outweigh the positive aspects of the member’s military record,  an under other than honorable conditions characterization is warranted.  A violation of either Article 86 (for more than 30 days) or Article 112a is considered a serious offense, for which a punitive (Bad Conduct or Dishonorable) discharge is authorized if adjudged by a Special or General Court-Martial.  An upgrade to General (Under Honorable Conditions) would therefore be inappropriate in this case.  

Issue 3 (Equity):  The NDRB is authorized to consider post-service factors in deciding whether to re-characterize a discharge.  However, there is no law or regulation providing that an unfavorable discharge may be upgraded based solely on the passage of time, good conduct, or favorable endorsements in the civilian life subsequent to leaving the service.   Ordinarily, the NDRB must find that a procedural impropriety or inequity existed during the period of enlistment in question before it can grant relief.  Outstanding post-service conduct is considered by the NDRB 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.  The Applicant provided a statement, dated 20060108, appended to his DD Form 293 (application) in which he alludes to positive activity after he left the Marine Corps.  The Applicant's efforts need to be more encompassing.  Examples of documentation that could be provided to the Board are: 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.  To this point, the Applicant has not provided sufficient post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge.   Therefore, the Board did not consider relief appropriate in this case..  
  
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)				19960712 - 19960922  
Active:   		              	 		

Period of Service Under Review:
Date of Enlistment:  				19960923
Years Contracted:  				; Extension:   
Date of Discharge:				19970728
Length of Service
	Active:					    Yrs  10  Mths  06  Dys  (does not exclude lost time)
	Inactive:					NONE
	Time Lost During This Period:		Days UA:  36  Days Confinement:  
	
Education Level:  				
Age at this Enlistment:  				
AFQT:  						44
MOS:						1800
Highest Rank:					
Proficiency/Conduct marks (# of occasions):		4.2(2)/2.8 (3)
Awards and Decorations (as listed on the DD Form 214):  RIFLE EXPERT BADGE 1ST AWD

Service Record Entries Related to Characterization of Service or Basis for Discharge

19960711:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

19970604:	Applicant declared a deserter.

19970624:	Commanding Officer’s statement concerning the admission of PFC K_ to illegal drug use.

19970625: 	Applicant makes written admission to recent marijuana use on Acknowledgement of Rights form.
 
19970625:	NJP for violation(s) of UCMJ:
	Article 86: Did on or about 19970501, without authority, absent himself from his organization until 19970610.
	Article 112a: Did at an unknown location between on or about 19970610 wrongful use marijuana.
	Award:  Forfeiture of $450.00 for 2 months, restriction and extra duty for 45 days, reduction to E-1.
	Not appealed.

19970714:	Substance Abuse Evaluation Report: As a result of a command referral the counselor’s diagnostic impression was drug abuse (isolated incident) and alcohol abuse (isolated incident) and was confirmed by a medical officer’s diagnosis.

Elements of Discharge:  [INVOLUNTARY]

Date Notified:					19970625
Basis for Discharge:				 due to:  
				
Least Favorable Characterization:			
Commanding Officer’s Intended Recommendation:	

Date Applicant Responded to Notification:		19970625
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	Administrative Board			

Commanding Officer Recommendation (date):	 (19970625)
SJA review (date):				 (19970716)
Separation Authority (date):	COMMANDING GENERAL, 2D MARINE DIVISION, II MARINE EXPEDITIONARY FORCE (19970718)
	Basis for discharge directed:		 due to:  
	Characterization directed:			
Date Applicant Discharged:			19970728

Additional Documents Submitted by Applicant and Considered By Board

Total Number of Pages:				6
       
Related to Period of Service Under Review:
	From Service and/or Medical Record:		Other Records:	

Related to Other Period(s) of Service:
	From Service and/or Medical Record:		Other Records:	
       
Related to Post-Service Period:
	Employment:					Finances:	
	Health/Medical Records:				Substance Abuse:	
	Family/Personal Status:				Education:	
 	Community Service Efforts:			References:	
	Criminal Records:			

Other:
	Additional Statements From Applicant:		From Representative:	
        	Other Documentation (Describe)		      

Pertinent Regulation/Law

A.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 Jan 97 until 31 August 2001.

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, and Article 86 (>30 days).      .

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