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

Docket No. MD07-00569

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

ex-Pvt, USMC
MD07-00569

Current Discharge and Applicant’s Request

Application Received:  20070322	           Characterization Received:  UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason:  MISCONDUCT 				           Authority:  MARCORSEPMAN PAR 6210.5

Applicant’s Request:	Characterization change to:  GENERAL (UNDER HONORABLE CONDITIONS)
			Narrative Reason change to: NONE REQUESTED
Applicant’s Issues:	1.  RE Code change/re-enlistment
			2.  Isolated incident
			3.  Misconduct due to dealing with death of father and death of Marines in Afghanistan

Decision

By a vote of 5-0 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS.	
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT.

Date:  20071120	DOCUMENTARY REVIEW	Location:  Washington D.C.	 Representation:  NONE

Discussion

Issue(s) 1:  This is either an Issue which the Board cannot form the basis of relief for the Applicant, or one that the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding this Issue.  

Issue 2 (Equity). The Applicant claims that his discharge was based on an isolated incident.  First, despite a servicemember’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.  There is credible evidence in the record that the Applicant used illegal drugs, and some evidence that he may have done so more than once, in violation of Article 112a of the UCMJ.  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.  In the Applicant’s case, his illegal drug use was not his only misconduct.  The Applicant also went UA on 2 occasions in violation of Article 86 of the UCMJ, the second instance after his discharge had been suspended and while he had the opportunity to demonstrate his rehabilitative potential.   

Issue 2 (Equity).  The Applicant claims “temporary insanity” regarding the way he behaved in the face of his father’s recent death and the news of the deaths in Afghanistan of Marines he knew and/or with whom he had previously served.  The NDRB recognizes that serving in the Marine Corps is challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required, and risk injury or death in order to serve their country.  It must be noted that most Marines serve honorably, and therefore earn their honorable discharges.  In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due.  The NDRB found that the Applicant's service was equitably characterized.  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.  

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, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that the discharge was proper and equitable. 

Summary of Service

Prior Service:
Inactive: USMCR (DEP)	20000712 - 20000729  COG		Active:   NONE	

Period of Service Under Review:
Date of Enlistment: 20000730		Years Contracted:  4; Extension:  NONE.	Date of Discharge:  20020612
Length of Service:  01  Yrs  10  Mths  13  Dys	Lost Time:  Days UA:  22  Days Confined:  NONE
Education Level:  12	Age at Enlistment:  18	AFQT:  35	MOS:  1371  Highest Rank:  LANCE CORPORAL
Proficiency/Conduct marks (# of occasions):	4.3(3)/4.2(3)	Awards and Decorations (per DD 214):  NDSM, RMB

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

20011205:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 20011128, tested positive for (THC).

20020109:	Applicant refused Medical Officer’s Evaluation.

20020221:	SCM -- Viol UCMJ Art. 86 – Unauthorized absence from 20011115 to 20011126; viol of UCMJ Art. 112a - Wrongful use of marijuana on 20011127.
	Awarded -  FOP ($736.00) for (1 month); RIR (E-1); Restr  for (60 days).  CA action:  Approved, 20020222.

20020514:	NJP -- Viol UCMJ Art. 86 – UA 1700, 20020425 to 1800, 20020506.
	Awarded - FOP ($238.00); Restr for (14 days); Extra duties (14 days).

Discharge Process

Date Notified:	20020308
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:		20020308
Rights Elected at Notification:
	Consult with Counsel			ELECTED
	Obtain Copies of Documents		WAIVED
	Submit Statement(s) (date)			WAIVED
	Administrative Board			WAIVED

Commanding Officer Recommendation (date):	UNDER OTHER THAN HONORABLE CONDITIONS (20020308)
SJA review (date):	SUFFICIENT IN LAW AND FACT (20020321)
Separation Authority (date):	COMMANDING GENERAL, 1^ST MARINE DIVISION (20020404) APPROVED, SUSPENDED FOR 6 MONTHS
              Basis for discharge directed:	MISCONDUCT DUE TO:  DRUG ABUSE
              Characterization directed:	UNDER OTHER THAN HONORABLE CONDITIONS

Date Notified of Proposed Vacation:		20020509
	Basis for Vacation:			Unauthorized absence, 20020425 - 20020506

Date Applicant Responded to Vacation Notice:	20020510
Rights Elected at Notification:
	Consult with Counsel			WAIVED
	Submit Statement(s) (date)			WAIVED 

Commanding Officer Recommendation (date):	VACATE (20020509)
SJA review (date):				SUFFICIENT IN LAW AND FACT (20020524)
Separation Authority (date):			COMMANDING GENERAL, 1st MARINE DIVISION (20020530)
	Decision					VACATE SUSPENSION, EXECUTE DISCHARGE
Date Applicant Discharged:	20060612

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:	Service and/or Medical Record:  ☒		Other Records:  ☒

Related to Post-Service Period:  	
	Employment:  		☐	Finances:  		☐	Education: 		☐
	Health/Medical Records:  	☐	Substance Abuse:		☐	Criminal Records:  	☐
	Family/Personal Status: 	☐	Community Service:  	☐	References:  		☐
	
Additional Statements From Applicant:  ☒	From Representative:  ☐  Other Documentation (Describe) ☐      

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 controlled substances.

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 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