Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: janet.goode
Company: NCPB

Docket No. MD07-01085

ex-Pvt, USMC

Current Discharge and Applicant’s Request

Application Received:  20070802
Characterization of Service Received:  UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge: MISCONDUCT-DRUG ABUSE (ADMIN DISCHARGE BOARD REQUIRED BUT WAIVED)
Authority for Discharge:  MARCORSEPMAN 6210.5 (DRUGS)

Applicant’s Request:  Characterization change to:  GENERAL (UNDER HONORABLE CONDITIONS)
		       Narrative Reason change to: SECRETARIAL AUTHORITY

Summary of Service

Prior Service:
Inactive: USMCR (DEP)	19930730 - 19930802  COG		Active:   NONE

Period of Service Under Review:
Date of Enlistment: 19930803		   Period of Enlistment:  4 Years  0 Months		Date of Discharge:  19940701
Length of Service:  00  Yrs  10  Mths  29  Dys	Education Level:  12	Age at Enlistment:  18	AFQT:  79
MOS:  4000  	  Highest Rank:  PRIVATE 		Fitness Reports:  NOT APPLICABLE
Proficiency/Conduct Marks (# of occasions): 4.2 (3)/4.2 (3)
Awards and Decorations (per DD 214): Rifle MM, NDSM 

Periods of UA/CONF:  NONE

NJPs:	1
	19940304:  Article 112a (Drug abuse), 2 specifications:  
-	specification 1: Wrongful use of a controlled substance; 
-	specification 2: Wrongful possession of a controlled substance.
Awarded - FOP, RESTR, EPD.  Susp - NONE.
	
6105 Counseling: 1
	19940412:  For illegal drug involvement, specifically, possession and usage of marijuana as identified through being  
                                  apprehended by the Quantico Military Police; CID Report # 19940123 23OV-0083-7NMA. 

Types of Documents Submitted

Related to Military Service:	DD 214:  ☒	Service and/or Medical Record:  ☒		Other Records:  ☐

Related to Post-Service Period:	
	Employment:  		☒	Finances:  		☐	Education/Training:	☒
	Health/Medical Records:	☒	Substance Abuse:		☐	Criminal Records:	☒
	Family/Personal Status: 	☒	Community Service:  	☒	References:  		☒
	
Additional Statements From Applicant:  ☒		From Representation:  ☐		From Member of Congress:  ☒
Other Documentation (Describe) ☒:  Letter from BCNR; Letter from State of Texas Office of the Governor; Letter from Executive Assistant to the Chief, Joint Staff Texas Military Forces; Letter from Special Assistant to the President of the United States; Letter from Director, White House Liaison Office.

NDRB Documentary Review Conducted (date):	19990315
NDRB Documentary Review Docket Number:	MD98-00803
NDRB Documentary Review Findings:		NO CHANGE WARRANTED
Board for Correction of Naval Records Docket #:	679-05
BCNR Findings:					NO CHANGE WARRANTED
DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1.  Narrative reason change.
2.  Post service conduct.

Decision

Date:  20080820	PERSONAL APPEARANCE HEARING	Location:  Washington D.C.	 Representation:  American Legion

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-DRUG ABUSE (ADMIN DISCHARGE BOARD REQUIRED BUT WAIVED).

Discussion
Issue 1: (Equity)  RELIEF NOT WARRANTED.  With regard to the Applicant’s request to have his narrative reason for discharge changed, the NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted.  The Applicant does not deny he was administratively discharged for his misconduct due to his use of illegal drugs (marijuana).  The Applicant's DD Form 214, Block 28, Narrative Reason for Separation, indicates he was separated for ‘Misconduct-Drug Abuse’.  The Board determined to change the Narrative Reason for Separation would be inappropriate.

Issue 2: (Equity)  RELIEF WARRANTED.   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 Applicant’s record of service was marred by 1 non-judicial punishment for a violation of the Uniform Code of Military Justice, Article 112a (2 specifications), after less than 10 months of service.  While this violation could have resulted in a punitive discharge and confinement if adjudicated by a special or general court martial, the command did not pursue a punitive discharge and opted for an administrative discharge instead.

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, good conduct, or favorable endorsements 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 during Board reviews.  The Applicant provided verifiable employment references, evidence of a crime and drug-free lifestyle, and letters of reference and of character.  The Board noted that the Applicant has demonstrated a strong commitment to family, employment, community service, and a steadfast determination to upgrade his discharge to continue to serve in the Army National Guard.  His post-service actions demonstrate his misconduct and characterization of service was most likely not reflective of his overall character.  Therefore, the Board determined an upgrade would be appropriate at this time.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record, Discharge Process and evidence submitted by the Applicant, the Board found that the discharge was proper but not equitable.

Pertinent Regulation/Law

A.  Paragraph 6210, Misconduct, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 June 1989 until 17 August 1995.

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.

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 or is referred to a court-martial 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 other medical related reasons.”  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 special 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.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

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

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Nonjudicial punishment	SCM – Summary court-martial
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties
	CONF – Confinement		B&W – Confinement on bread and water			CC - Civilian conviction

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Nonjudicial punishment	SCM – Summary court-martial	
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties 
	CONF – Confinement		B&W – Confinement on bread and water