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

Docket No. MD09-00834

ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20060724
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MARCORSEPMAN 

Applicant’s Request:  Characterization change to:  
		       Narrative Reason change to:  

Summary of Service

Prior Service:
Inactive: USMCR (DEP)	20010731 - 20020609  	Active:	

Period of Service Under Review:
Date of Enlistment:  20020610	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20041021	Highest Rank:  
Length of Service:    Year(s)    Month(s)  12  Day(s)
Education Level:  	AFQT:  76
MOS:  3451
Proficiency/Conduct Marks (# of occasions):   (7) / (7)	Fitness Reports:  

Awards and Decorations (per DD 214):	 LoA (3)

Periods of UA/CONF:  

NJP:  
- 20030515:	Article 111 (Drunken or reckless operation of a vehicle on 20030405)
	Awarded:    Suspended:    Suspension vacated 20030728

SCM:  

SPCM:  

Civilian Arrest:  
           - 20040522:    Arrested by Belton, Missouri, Police Department for drug use, possession of drug paraphernalia and trespassing.

Retention Warning Counseling:  

- 20030407:	For alcohol related incident involving operating a motor vehicle in a careless and imprudent manner and operating a motor vehicle in an intoxicated condition on 20030405; scheduled for and required to attend a court appearance on 20030528.
- 20030515:	For alcohol related incident and NJP involving operating a motor vehicle in careless and imprudent manner resulting in a collision with a parked tractor-trailer and driving while intoxicated with a BAC of 0.1779.
- 20030728:	For consuming alcohol under the legal age.

Applicant Testified:  
Applicant Available for Questions:  
Witnesses:  Yes 
Observers:   

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.  The Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 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.

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

Applicant’s Issues

1.	His mental heath was a mitigating factor for his misconduct.
2.    He was not given due process during his administrative discharge board.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               

Decision

Date:  20091019		Location: Washington D.C.	 Representation: 

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  MISCONDUCT.

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.  In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant’s record of service included  6105 counseling warnings and  non-judicial punishment () for  of the Uniform Code of Military Justice (UCMJ): Article 111 (Drunken or reckless operation of a vehicle).  The Applicant was also arrested by the Belton, Missouri, Police Department in May 2004 for drug use, possession of drug paraphernalia and trespassing.  During this incident, the Applicant admitted to smoking crack to the arresting police officer.  The Applicant did not have a pre-service drug waiver prior to entering the Marine Corps, but did acknowledge  complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on July 30, 2001.  The Applicant is advised that certain serious offenses warrant separation from the naval service in order to maintain good order and discipline—violation of Article 112a (Drug abuse) meets this standard, requiring mandatory separation processing.  When processed for separation, the Applicant waived his right to submit a written statement, but elected  rights to consult with a qualified counsel and request an administrative discharge board.  By a vote of 3-0, an administrative discharge board found the Applicant did commit misconduct, recommended separation with an Under Other Than Honorable Conditions 
characterization, and did not recommend that the separation be suspended.

:  (Decisional) ()  .  The Applicant contends his mental heath issues were a mitigating factor in his misconduct and that he was not afforded due process during his administrative discharge board.
During the Applicant’s personal appearance hearing, the Board reviewed the Applicant’s in-service and post-service mental health diagnoses and treatment.  Through this review and through testimony by the Applicant’s parents, the Board learned that the Applicant was diagnosed with ADHD as a child and was prescribed various medications with no success.  The Board also noted that the Applicant failed to annotate this when completing enlistment forms, marking “no” to the question “Have you ever taken medication, drugs, or any substance to improve attention, behavior or physical performance,” (signed by the Applicant on April 29, 2001).   The Board also learned through a review of the Applicant’s medical records (case notes) that he had used illegal drugs prior to his enlistment, which he again failed to annotate in enlistment paperwork.  The Board also thoroughly reviewed the Applicant’s administrative discharge board’s decision, procedures followed, and applicable regulations involving separation due to misconduct.  The Board discerned no impropriety in the discharge action and determined that the command properly discharged the Applicant base on his record of misconduct and the administrative discharge board’s findings.  However, the Board did determined, based on careful review of the Applicant’s post-service mental health diagnoses not available to the command at the time of discharge, that the Applicant’s mental health was a mitigating factor in his misconduct.  Therefore, the Board’s voted 3-2 that the character of the discharge shall change to General (Under Honorable Conditions); however, by unanimous vote, the Board determined that the narrative reason for discharge (Misconduct) shall not change.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe 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:  After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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.  There are veterans organizations such as the American Legion and the Association of Service Disable Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’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 BCNR can make changes to reenlistment codes.  Additionally, the NDRB 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, 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 BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.  

Post-Service Conduct:  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  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 support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (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; attendance at 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  in-service misconduct was an aberration and not indicative of the member’s overall character.

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 NDRB 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