Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: carla.d.smith1
Company: NCPB

Docket No. MD09-00679

ex-LCpl, USMC

Current Discharge and Applicant’s Request

Application Received:  20090130
Characterization of Service Received:  UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge:  IN LIEU OF TRIAL BY COURT MARTIAL
Authority for Discharge:  MARCORSEPMAN 6419 (IN LIEU OF TRIAL BY COURT MARTIAL)

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

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	19980129 - 19980706  COG	Active:	NONE

Period of Service Under Review:
Date of Enlistment:  19980707	Age at Enlistment:  18
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  20020802	Highest Rank:  CORPORAL
Length of Service:  04  Year(s)  00  Month(s)  26  Day(s)
Education Level:  12	AFQT:  42
MOS:  2531
Proficiency/Conduct Marks (# of occasions):  4.2 (9) / 4.2 (9)	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	Rifle EX Pistol NONE NDSM MUC SSDR(w/1)  LoA 

Periods of UA/CONF:  NONE

NJP:  3
- 19990727:	Article 86 (Unauthorized absence)
		Awarded: FOP RESTR EPD  Suspended:  FOP

- 20000127:	Article 91 (Insubordinate conduct towards a noncommissioned officer)
	Article 92 (Failure to obey an order or regulation)
		Awarded: FOP RESTR EPD  Suspended:  FOP 

- 20000503:	Article 91 (Insubordinate conduct towards a noncommissioned officer)
			Awarded: FOP RESTR EPD  Suspended:  FOP 

          - Charges were preferred for a court-martial for violations of the UCMJ, Article 112a (Drug abuse, wrongful use of a controlled substance: Cocaine).  The Applicant chose a Separation In Lieu of Trial by Court-Martial.     

SCM:  NONE  SPCM:  NONE   CC:  NONE

Retention Warning Counseling:  1

- 19990730:	For unauthorized absence, this resulted in a NJP.

Types of Documents Submitted/reviewed

Related to Military Service: 
              DD 214:  ☒	                            Service/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 Congress member:    ☐

                    Other Documentation:  ☐

Pertinent Regulation/Law

A.  Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications.

C.  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.

D.  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 86 (UA); Article 91 (Insubordinate conduct towards a noncommissioned officer); Article 92 (Failure to obey an order or regulation) and Article 112a (Drug abuse, wrongful use of a controlled substance).

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

Applicant’s Issues

1.  Service benefits (Medical – Post Traumatic Stress Disorder (PTSD)).
2.  Educational opportunities.
2.  Discharge unjust due to mitigating circumstances. 

Decision

Date:  20090423	   DOCUMENTARY REVIEW	    Location: Washington D.C.        Representation: NONE

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 IN LIEU OF TRIAL BY COURT MARTIAL.

Discussion

Issues 1-2:  These are either Issues which the Board cannot form the basis of relief for the Applicant, or ones for which the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum, specifically the paragraph concerning Service Benefits and Employment/Educational Opportunities, regarding these Issues.  

It was noted the Applicant claims he has PTSD, but the Board was unable to find any documentation pertaining to PTSD.  The Board did find the Applicant was subject to numerous other injuries, such as: shoulder (fighting, basketball), knee (basketball), hand (fighting), ankle/foot (military training); all which required detailed attention and/or surgery.  Without the VA assessment of PTSD the Board assumes the Applicant’s reference to receiving disability is for his in-service injuries as listed above and not PTSD. 

 Issue 3:  (Equity)  RELIEF NOT WARRANTED.   The Applicant contends his discharge is unjust due to mitigating circumstances (unknowingly used drugs at a party), which resulted in him being discharged with an “Under Other Than Honorable Conditions” discharge vice an “Honorable”.  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 one retention warning, three NJP’s and charges preferred to Court-Martial, where he then chose Separation In Lieu of a Trial by Court-Martial for violations of the Uniform Code of Military Justice (UCMJ):  Article 86 (UA); Article 91 (Insubordinate conduct towards a noncommissioned officer); Article 92 (Failure to obey an order or regulation) and Article 112a (Drug abuse, wrongful use of a controlled substance, cocaine).  These are considered serious offenses which could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentence by a special or general court martial.  The command did not pursue a court-martial or a punitive discharge but accepted the Applicant’s request to be Separated in Lieu of a Trail by a Court-Martial. 

In the Applicant’s statement to the NDRB, he says “I was at a party with some friends and was unknowingly drugged with the substance cocaine.  I guess the person mixing the drinks was putting the substance in the drinks.”  In the Applicant’s initial personal statement when charges were preferred for Article 112a (Drug abuse, wrongful use of a controlled substance), the first line of the statement reads, “I, Corporal W. N. G., freely admit that I wrongfully used cocaine.”  He continues his statement by saying “I went next door to the neighbor’s house because I heard a party going on.  The neighbors let me into the house and introduced me to all their friends.  Once inside, they offered me a drink, which I accepted.  They also offered me some white powder that was on the table; at that point I was pretty sure it was a drug of some sort.  I told them that I wasn’t interested.  A couple of minutes went by and a guy there grabbed my drink.  I really didn’t think anything of it because I was talking to a couple of women.  About a minute or so went by and this guy gave me my drink back, and toasted me.  He said, “Congratulations your out of the Marine Corps,” I said, “You know what?  You’re right, I am.”  I drank it suspecting that something was added to it.  After I drank it, this person gave me a wink and said, “I hooked you up, dude.”  Later in the statement, he says, “On 28 May 2002, my company had a random urinalysis.  I thought that I had done something wrong over the weekend, but I didn’t want to tell anyone.  I didn’t want to get into trouble before I went on terminal leave that Friday.”

The Applicant’s urinalysis tested positive for cocaine and he was recalled off terminal leave.  Referring to his initial statement again, the Applicant says, “Initially, the Company decided to send me to Non-judicial Punishment, which I accepted without question.  I know what I did was wrong and was willing to face the consequences.”  The Battalion Commander decided the Applicant would be referred to a Court-Martial instead of NJP and the Applicant then requested a Separation In Lieu of Trial by Court-Martial and was administratively processed out of the Marine Corps.  The NDRB determined the Applicant knowingly used cocaine and that the awarded discharge characterization was appropriate; an upgrade based on mitigating circumstances as described by the Applicant would be inappropriate.
 
The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, there is no law or regulation, which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service.  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 during Board reviews.  Documentation to help support a post service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificate (if applicable); character witness statements; 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 companies, or other financial institutions; attending or completion of higher education (official transcripts) and documentation of a drug free lifestyle.  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 accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.

Besides the Applicants statement on the DD Form 293, he only provided service-related documentation as evidence on his behalf.  To warrant an upgrade the Applicant’s post service efforts need to be more encompassing.  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.  Should the Applicant obtain additional evidence or post service documentation he may wish to apply for a personal appearance.  There are veteran’s organizations, such as the American Legion, willing to provide guidance to assist former service members in their efforts to obtain a discharge upgrade.  

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service and Medical Record, Discharge Process and evidence submitted by the Applicant, 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 – Non-judicial punishment	SCM – Summary court-martial
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties
	CONF – Confinement	CC - Civilian conviction	CCU - Correctional Custody Unit	BW – Confinement on bread and water

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