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

Docket No. MD07-00715

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

ex-Pvt, USMC
MD07-00715

Current Discharge and Applicant’s Request

Application Received:  20070724 	Characterization Received:  GENERAL (UNDER HONORABLE CONDITIONS)
Narrative Reason:  MISCONDUCT           Authority:  MARCORSEPMAN 6210.5

Applicant’s Request:	Characterization change to:  HONORABLE
			Narrative Reason change to: NONE REQUESTED
Applicant’s Issues:	1. Reenlistment opportunities
			2. Administrative Separation Board was not in compliance with MCO P1900.16E
			3. Circumstances of administrative separation were fundamentally unjust.

Decision

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

Date:  20071205	DOCUMENTARY REVIEW	Location:  Washington D.C.	 Representation:  Private representaive

Discussion

Issue 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 implies that the Administrative Board was not in compliance with MCO P1900.16E as he was permitted only two witnesses at his administrative board.   The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was permitted only two witnesses and therefore the Administrative Board was not in compliance of MCO P1900.16E.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  

Issue 3: (Equity).  The Applicant contends that the circumstances of administrative separation were fundamentally unjust.  The Board found that the Commanding Officer recommended that the Applicant be separated from the Marine Corps as a result of his conviction at special courts-martial and that all attempts to correct the Applicant’s personal behavior had failed.  The Applicant should understand that there are three possible outcomes in processing for separation; discharge, retention, and suspension.  The Applicant exercised all rights afforded to him throughout the process.  The Administrative Board unanimously voted to separate the Applicant and not suspend his separation.  The Commander of Marine Corps Base, Quantico directed separation of the Applicant with a general discharge by reason of misconduct due to drug abuse.  The Board determined that an upgrade to honorable would not be appropriate.

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)	20010412 - 20010706  COG		Active:   NONE	
Period of Service Under Review:
Date of Enlistment: 20010707	Years Contracted:  4; Extension:  NONE.	Date of Discharge:  20040226
Length of Service:  2  Yrs  7  Mths  20  Dys	Lost Time: 75 Days UA:  NONE  Days Confined:  75
Education Level:  12	Age at Enlistment:  22	AFQT:     	MOS:  9812  Highest Rank:  CORPORAL
Proficiency/Conduct marks (# of occasions):	4.5(4)/4.4(4)	Fitness reports:  NOT APPLICABLE 
Awards and Decorations (per DD 214):  Rifle MM,  Navy Unit Commendation, National Defense Service Medal, Letter of Appreciation (2)

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

20030401:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 20030328, tested positive for (Ecstasy).

20030805:	SPCM -- Viol UCMJ Art. 107 – False Official Statement, Art 112a – Wrongful use of ecstasy.
	Awarded -  FOP ($700.00 amount) for ( 3 months); RIR (E-1); Confinement ( 105 days).  All confinement in excess of 90 days will be suspended for a period of 12 months.

20031020:	MARCORSEPMAN 6105 counseling for false official statement and controlled substance use.

Discharge Process

Date Notified:	20031020
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:		20031020
Rights Elected at Notification:
	Consult with Counsel			ELECTED
	Obtain Copies of Documents		ELECTED
	Submit Statement(s) (date)			WAIVED 
	Administrative Board			ELECTED

Administrative Board Date:	20040120
              Findings, by preponderance of the evidence:	BY UNANIMOUS VOTE MISCONDUCT DUE TO DRUG ABUSE ?.
	
	BY UNANIMOUS VOTE SEPARATION WAS WARRANTED.
              Recommendation on Separation: 	BY UNANIMOUS VOTE SEPARATE SHOULD NOT BE SUSPENDED
              Recommendation on Characterization:	BY UNANIMOUS VOTE GENERAL (UNDER HONORABLE CONDITIONS)

Commanding Officer Recommendation (date):	UNDER OTHER THAN HONORABLE CONDITIONS (20031021)
SJA review (date):	NOT FOUND IN RECORD 
Separation Authority (date):	COMMANDER, MCB QUANTICO (20040212)
              Basis for discharge directed:	MISCONDUCT DUE TO:  DRUG ABUSE
              Characterization directed:	GENERAL (UNDER HONORABLE CONDITIONS)
Date Applicant Discharged:	20040226

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, Articles 107 (False official statement) and 134 (Wrongful use of 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 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