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

Docket No. MD09-01737

ex-PFC, USMC

Current Discharge and Applicant’s Request

Application Received:  20090602
Characterization of Service Received:  (corrected)  UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge:  (per DD 214)  MISCONDUCT
Authority for Discharge:  (per DD 214) MARCORSEPMAN 6210.5 [DRUGS]

Applicant’s Request:	Characterization change to:  HONORABLE OR GENERAL (UNDER HONORABLE CONDITIONS)
	Narrative Reason change to:  NONE REQUESTED

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	20030529 - 20031228  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  20031229	Age at Enlistment:  23
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  20071211	Highest Rank:  LANCE CORPORAL
Length of Service:  03  Year(s)  11  Month(s)  13  Day(s)
Education Level:  12	AFQT:  58
MOS:  5811
Proficiency/Conduct Marks (# of occasions):  4.1 (9) / 4.1 (9)	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	Rifle SS Pistol EX (2) GCM SSDR ICM GWOTSM NDSM MUC CoC

Periods of UA/CONF:  NONE

NJP:  1

- 20071003:	Article 112a (Drugs - marijuana)
	Awarded: RIR FOP RESTR EPD  Suspended:  NONE

SCM:  NONE

SPCM:  NONE

CC:  NONE

Retention Warning Counseling:  3

- 20050829:	For your unsatisfactory performance due to failure to meet established Marine Corps weight and body fat percentage standards.

- 20070829:	For illegal drug involvement, THC usage identified through urinalysis confirmed by Navy Drug Lab Jacksonville FL message J02312928 July 2007.

- 20050829:	For my illegal drug involvement; THC usage identified through urinalysis.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

	Block 24, Character of Service, should read: “UNDER OTHER THAN HONORABLE CONDITIONS”

The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.

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:	☐

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

Applicant’s Issues

1.	Applicant wishes to become eligible for the GI Bill.
2.    Applicant wishes to become eligible for VA medical benefits.
3.    After initial positive urinalysis, the Applicant asked to take another test and was denied.

Decision

Date:  20100218	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 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 three 6105 counseling warnings, and one nonjudicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ): Article 112a (Wrongful use, possession, etc. of a controlled substance, 1 specification: marijuana – 24 ng/ml – the DoD threshold level for positive testing for marijuana is 15 ng/ml.)  The Applicant also had a pre-service drug waiver for using marijuana five times prior to entering the Marine Corps, and acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 18 April 2003.  Based on the Article 112a violation, processing for administrative separation is mandatory.  When notified of administrative separation processing, the Applicant waived his rights to consult with a qualified counsel, submit a written statement and request an administrative board. 

Issue 1:  (Nondecisional) The Applicant wishes to become eligible for the GI Bill.  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.

Issue 2:  (Nondecisional) The Applicant wishes to become eligible for VA medical 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.

Issue 3:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends his discharge was improper and inequitable because he was denied the opportunity to take a second urinalysis following an initial positive test for marijuana.  The Applicant made this request because he disagreed with the results of his urinalysis.  As noted above, the Applicant tested positive for marijuana on a urinalysis test conducted on 10 July 2007.  A single positive urinalysis is sufficient grounds for separation from the Marine Corps.  The Applicant had no rights violated when denied the opportunity to take another drug test.  Clearly, a subsequent would only determine if the service member was “clean” at the time the second test was taken; it could not verify that the Applicant was “clean” during the first test.  The Applicant should note that the Naval Labs employ a two-test process where initial positives are re-confirmed with a more extensive test.  The NDRB found the Applicant’s contention to be without merit.  Additionally, the NDRB advises the Applicant certain serious offenses warrant separation from the service in order to maintain good order and discipline.  Violation of Article 112a is one such offense requiring mandatory processing for administrative separation regardless of grade or time in service.  This usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial.  The command could have pursued a punitive discharge, but opted instead for the more lenient administrative discharge. The NDRB determined an upgrade would be inappropriate.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries and discharge process, 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 discharge.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct.

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.

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 Disabled American 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 their 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 – Nonjudicial 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