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

Docket No. MD08-01547

ex-PFC, USMC

Current Discharge and Applicant’s Request

Application Received:  20080716
Characterization of Service Received:  OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge:  MISCONDUCT DUE TO DRUG ABUSE
Authority for Discharge:  MARCORSEPMAN 6210.5 (DRUGS)

Applicant’s Request:  Characterization change to:  HONORABLE
		       Narrative Reason change to: NONE REQUESTED

Summary of Service

Prior Service:
Inactive:  USMCR (DEP)	19910608 - 19911222  COG		Active:  NONE

Period of Service Under Review:
Date of Enlistment: 19911223	Period of Enlistment:  6 Years  0 Months	Date of Discharge:  19960926
Length of Service:  04  Years  09  Months   04  Days	  Education Level:  12	Age at Enlistment:  18
AFQT:  NFIR	MOS:  2542	Highest Rank:  LANCE CORPORAL	Fitness Reports:  NOT APPLICABLE
Proficiency/Conduct Marks (# of occasions):	  4.1 (13) / 4.0 (13)
Awards and Decorations (per DD 214):  Rifle MM NDSM

Periods of CONF:  NONE

NJPs:	6
19930909:  Article 121 (Wrongfully appropriate a phone card number, the property of a Sergeant)
                   Awarded:  FOP RESTR.  Suspended:  NONE

19940712:  Article 86 (Unauthorized absence from 0555-0615, 19940707)
                   Awarded:  RESTR EPD  Suspended:  NONE

19940805:  Article 134 (Breaking restriction)
                   Awarded:  RIR FOP RESTR  Suspended:  FOP RESTR

19960411:  Article 92 (Caught sleeping on guard duty)
                   Awarded:  FOP EPD  Suspended:  FOP

19960603:  Article 86 (Unauthorized absence from 0700, 19960514-1730, 19960515 (1 day).
                   Awarded:  RESTR EPD  Suspended:  NONE

19960624:  Article 112a (Tested positive for cocaine)  
                   Article 134 (Break restriction)
                   Article 91 (Disrespectful in language towards Sergeant)
                   Awarded:  RIR FOP RESTR EPD   Suspended:  NONE

SCM:  NONE     SPCM:  NONE     CC:  NONE

6105 Counseling: 10

19930820:  For excessive speed when driving (57 mph in a 45 mph zone.  Excessive speed when driving (62 mph in a 
                   35 mph zone).

19940202:  For weapon security.  SNM left his weapon unattended upon returning.  The weapon was picked up and 
                   eventually returned to him.

6105 Counseling (cont):

19940609:  For failure to pay for support of spouse.

19940609:  For failure to take care of financial responsibilities, not paying your bills.

19940714:  For violation of Article 86.

19940802:  For unauthorized absence from appointed place of duty.

19940805:  For need to follow instructions given to you by your superiors acting according to the Articles of the
                   UCMJ.

19950131:  For being late for CO formation and in wrong uniform.  Also failing to complete morning clean-up
                    assigned.

19950918:  For alcohol related incident, specifically arrest and conviction for DWI (BAC .07%) at Camp Pendleton,
                   California.

19960605:  For NJP that took place on 19960603 for unauthorized absence from 0700, 19960514 through 1730,
                   19960515.

Types of Documents Submitted/reviewed

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):  ☐

Pertinent Regulation/Law

A.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 
18 August 1995 to 30 January 1997.

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.

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

Applicant’s Issues

1.  Regrets his past mistakes.
2.  Post service conduct.

Decision

Date:  20081016    DOCUMENTARY REVIEW	Location:  Washington D.C.	 Representation:  American Legion

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 (DRUG ABUSE).

Discussion

Issue 1:  (Equity)  RELIEF NOT WARRANTED.  The Applicant regrets the mistakes he made while on active duty and desires to upgrade his 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.  The Applicant’s record of service was marred by ten retention warning and six NJP’s for violations of the Uniform Code of Military Justice (UCMJ):  Articles 86 (UA), Article 91 (Disrespectful language towards a NCO), Article 92 (Failure to obey order/regulation), Article 112a (Drug use, use of illegal substance - cocaine), Article 121 (Wrongfully appropriate a phone cared), and Article 134 (Breaking restriction).  Violation of Articles 92, 112a and 121 are considered serious offenses, punishable by a punitive discharge and up to five years imprisonment if adjudged as part of the sentence upon conviction by a special or general court-martial.  The command did not pursue a punitive discharge but opted instead for an administrative discharge.  

While the Applicant may regret his mistakes, his crimes were not impulsive, but premeditated and deliberate.  He was given numerous opportunities to correct his conduct and adhere to military standards.  He repeatedly choose the wrong course of action.  Additionally, the evidence of record does not demonstrate the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The record clearly reflects by his willful and repeated misconduct he was unfit for further military service.

When the quality of a Marine’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under “Honorable” conditions.  An “Under Other than Honorable Conditions” is appropriate when the basis for separation is commission or omission of an act that constitutes a significant departure from the conduct expected of a service member.  Despite a service member’s prior record of service, certain serious offenses warrant immediate separation from the naval service in order to maintain proper order and discipline.  Illegal drug use cannot be tolerated by any member of the Marine Corps regardless of grade or time in service.  In accordance with Marine Corps policy, all Marines (regardless of pay grade) are processed for administrative separation by reason of misconduct, due to drug abuse, on the first offense.  The Applicant’s willful failure to uphold the standards of conduct of the USMC falls far short of what is expected from a Marine with his time in service.  Based on the above behavior and the Applicant’s total and repeated disregard for USMC values, the Board determined an upgrade or change would be inappropriate.  

Issue 2:  (Equity)  RELIEF NOT WARRANTED.  The Applicant requested via his American Legion representative’s statement for the Board to consider his post-service conduct.  Outstanding post-service conduct, 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, is considered.  The key word here is “Outstanding”.  The Board is looking for actions that go beyond simply daily living. Documentation to help support a post service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card company’s, or other financial institutions; documentation of a drug free lifestyle; and character witness statements.  The Applicant is advised that completion of these items 

alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case by case basis to determine if post service conduct mitigates the reason for the characterization of discharge. 
   
The Applicant did not provide a personal statement, supporting documentation of post service accomplishments or character witness statements to support his request for an upgrade.  The Applicant could have produced additional evidence as stated in the above paragraph with the full understanding completion of these items alone does not guarantee an upgrade.  The Board determined the characterization of service received, “Under Other Than Honorable Conditions”, was an appropriate characterization considering the time served and the UCMJ violations involved, and based on the lack of post service documentation provided an upgrade would be inappropriate.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process, the Board found  the discharge was proper and equitable.

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