Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: jennifer.miles
Company: NCPB

Docket No. MD09-02076

ex-Pvt, USMC

Current Discharge and Applicant’s Request

Application Received:  20090721
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:  GENERAL (UNDER HONORABLE CONDITIONS)
	Narrative Reason change to:  NONE REQUESTED

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	20050518 - 20050523  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  20050524	Age at Enlistment:  19
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  20080702	Highest Rank:  LANCE CORPORAL
Length of Service:  03  Year(s)  01  Month(s)  09  Day(s)
Education Level:  11	AFQT:  90
MOS:  0311
Proficiency/Conduct Marks (# of occasions):  3.8 (6) / 3.8 (6)	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	Rifle SS CAR SSDR (2) ICM GWOTSM NDSM

Periods of CONF: 20080220-20080319 (29 days)

NJP:  1
- 20071105:	Article 89 (Disrespectful toward Superior Commissioned Officer)
	Article 92 (Failure to obey an order or regulation)
	Awarded: FOP RESTR EPD  Suspended:  FOP  Suspension vacated 20071201

SCM:  1
- 20080403:	Article 86 (Unauthorized absence -Absent from unit 1830-2230, 20071130)
	Article 112a (Drug abuse, wrongful use of a controlled substance - marijuana)
	Sentence: RIR E-1 FOP CONF 30 days   Suspended: None

SPCM:  NONE          

CC:  NONE

Retention Warning Counseling:  2
- 20060129:	   For failure to obey an order or regulation, lack of initiative, and poor judgment.  On 20060116 during the Company Commander’s gear inspection all the cammies you displayed were wet, one set was unserviceable, and none of the cammies had the IR patches sewn on.  You stated that the dryers in the barracks did not work and that you had no time over the weekend to sew your patches on.  You were given alternate locations where your cammies could be dried and told to hand sew your IR patches on.  The following day you were inspected again and still displayed wet and unserviceable cammies without IR patches.  On 20060118 you were again inspected and your uniforms were in the same state.  Also on 20060118 during platoon PT you stopped during a run and refused to finish, stating that you did not want to be in the Marine Corps or with this unit or words to that effect.  Your actions are inconsistent with good order and discipline.  This sort of behavior is unacceptable and is punishable under the UCMJ, specifically Article 92.

- 20071105:	For failure to follow orders given by a Senior SNCO to remain seated until the Company Commander returns.  You did disrespect a Superior Commissioned Officer for SNM was given the command to “Carry On” and SNM just walked off without giving the appropriate greeting and gave a facial gesture and commented back with the words “F this” and left the office.

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.	The Applicant believes his discharge was inequitable, because of an isolated incident in 37 months and two combat tours.
2.	The Applicant believes his post-service conduct is worthy of consideration.

Decision

Date:  20100902          DOCUMENTARY REVIEW          Location: Washington D.C.          Representation: NONE

By a vote of 4-1 the Characterization shall change to GENERAL (UNDER 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 Board did complete a thorough review of the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included two 6105 counseling warnings, one nonjudicial punishment (NJP) for violations of the Uniform Code of Military Justice (UCMJ): Article 89 (Disrespectful toward Superior Commissioned Officer) and Article 92 (Failure to obey an order or regulation), and one summary court-martial (SCM) for violations of the UCMJ: Article 86 (Unauthorized absence -Absent from unit) and Article 112a (Drug abuse, wrongful use of a controlled substance: Marijuana -81 ng/ml).  The Applicant also had a pre-service drug waiver for using marijuana ten times prior to entering the Marine Corps and acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 14 May 2005.  
Based on the Article 112a violation, processing for administrative separation is mandatory.  When notified of administrative separation processing using the administrative board procedure, the Applicant exercised his rights to consult with a qualified counsel but waived his rights to submit a written statement for consideration by the separating authority and to request an administrative board.

Issue 1:  (Decisional) (Equity)  RELIEF WARRANTED.  The Applicant contends his discharge was inequitable due to it being an isolated incident in 37 months of service and two combat tours.  Despite a Marine’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  Violation of Article 112a is one such offense that requires mandatory separation.  The NDRB thoroughly examined the Applicant’s medical and service records and found that he had mental health issues prior to enlisting into the Marine Corps, which steadily became more obvious over time.  After his first tour to Iraq, he was treated for depression and anger management.  The Applicant was sent back to Iraq a second time but was sent home early due to mental health issues.  The Applicant was diagnosed by medical staff with PTSD, depression, and borderline personality disorder.  Although the NDRB does not condone drug usage, it felt mitigation was warranted based on all the circumstances surrounding the Applicant.  Relief granted.

Issue 2:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant believes his post-service conduct is worthy of consideration.  Although the Applicant states he has been attending college, is gainfully employed, and has stayed out of trouble, he failed to provide any documentary evidence on his behalf for post-service consideration.  The Applicant could have produced evidence as stated in the Post-Service Conduct paragraph in the addendum with the full understanding completion of these items alone does not guarantee an upgrade.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and service record entries and discharge process, the Board found the discharge was proper but not equitable.  Therefore, the awarded characterization of service shall change to GENERAL (UNDER 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 and Post-Service Conduct.

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