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

Docket No. MD09-01132

ex-Pvt, USMC

Current Discharge and Applicant’s Request

Application Received:  20090325
Characterization of Service Received:  UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge:  MISCONDUCT
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)	20001122 - 20010128  COG	Active:	NONE

Period of Service Under Review:
Date of Enlistment:  20010129	Age at Enlistment:  21
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  20020607	Highest Rank:  LANCE CORPORAL
Length of Service:  01  Year(s)  03  Month(s)  05  Day(s)
Education Level:  12	AFQT:  79
MOS:  0331
Proficiency/Conduct Marks (# of occasions):  3.9 (8) / 3.4 (8)	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	Rifle EX  NDSM

Periods of CONF:  20010906-20010908

NJP:  3
- 20010921:	Article 86 (UA 20010906-20010908 (2 days))
	Awarded: RESTR  Suspended:  NONE

- 20020222:	Article 86 (UA 20020213-20020214 (1 day))
	Awarded: FOP RIR RESTR EPD   Suspended:  RIR RESTR EPD  Suspension vacated 20020228

- 20020308:	Article 112a (Drugs-marijuana)
	Awarded: RESTR EPD RIR FOP  Suspended:  NONE 

SCM:  NONE

SPCM:  NONE

CC:  NONE

Retention Warning Counseling:  1

- 20020327:	For my illegal drug involvement, marijuana use, identified through urinalysis, confirmed by NAVDRUGLAB message 261823Z Feb 02.

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. Decisional Issue.  Substance abuse and lack of self-discipline contributed to his misconduct.
2. Decisional Issue.  Requests consideration for post-service record.

Decision

Date:  20091008	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. 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 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 reflects one 6105 counseling warnings and three Non-judicial Punishment (NJPs).  Two separate NJPs were for violations of the Uniform Code of Military Justice (UCMJ) Article 86 (Unauthorized Absence), and one for violation of Article 112a (Drugs, marijuana).  The Applicant also had a drug waiver for using marijuana prior to entering the Marine Corps, and acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 11 November 2000.  Based on the offense(s) committed, processing for administrative separation is mandatory.  When processed for administrative separation, the Applicant waived his right to request an administrative separation board, but consulted with a qualified counsel, and submitted a written statement.  

Issue 1 (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant is requesting an upgrade of the characterization of his discharge from Under Other Than Honorable Conditions to Honorable because he has overcome his substance abuse problems and is now a contributing member of society.  Certain serious offenses, even when isolated, warrant separation from the naval service in order to maintain good order and discipline—illegal drug use is one of these offenses.  The Applicant signed the USMC Drug Policy on November 20, 2000, thus fully aware of the zero tolerance policy for drug abuse for which he acknowledged the consequences.  The Applicant contends he did not commit a crime.  Illegal drug use is a crime and his use jeopardized the safety and welfare of his fellow Marines.  The evidence of record does not demonstrate the Applicant was not responsible for his conduct or he should not be held accountable for his actions.  When a Marine's service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  An Under Other Than Honorable Conditions discharge is warranted when a Marine commits or omits an act that constitutes a significant departure from the conduct expected from a Marine.  The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of conduct expected of all Marines, regardless of his grade and length of service, and falls far short of what is required for an upgrade in the characterization of service. 

Issue 2 (Decisional) (Equity) RELIEF NOT WARRANTED.  The Applicant states he is now a contributing member of society, that he is drug and alcohol free, a college graduate, and employed at Walgreens.  Besides the Applicant's statement on the DD Form 293, he provides a copy of his college transcripts and a W-2 form from Walgreens.  Although his efforts to improve his life are noteworthy, he failed to provide adequate documentation and evidence on his behalf to support a thorough post-service conduct review.  On page 4, Item 8, in the instructions for completion of DD Form 293, the Applicant is notified to submit evidence "which substantiate or relate directly to your issues in Item 6" (Issues: Why an upgrade or change is requested and justification for the request).  Additionally, upon receipt of the Applicant's DD Form 293, the NDRB mails an acceptance letter that includes Information Concerning Review Procedures, which discusses the submission of additional documents in paragraph 3, Submission of Evidence, and in the last section on page 4, Information Pertaining to a Review Based Upon Post-Service Conduct.   The Applicant should have provided documentation to include (but not limited to):  letters of personal references and verifiable employment record/letter of recommendation from his employers, evidence of a drug-free life style (completion of rehab/proof he attended Narcotics Anonymous or AA meetings), certification of non-involvement with civil authorities, evidence of financial stability (home ownership/home rental history, credit card payments), documentation of service at his church or in the community, and if married, a marriage certificate.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, discharge process and evidence submitted by the Applicant, the Board found the discharge was proper and equitable.  Therefore, the awarded characterization of service shall remain Under Other Than Honorable Conditions and the narrative reason for separation shall remain Misconduct.

[The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his/her discharge, June 7, 2002.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct.]

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 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 Board for Correction of Naval Records (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 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 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