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

Docket No. MD09-02346

ex-Pvt, USMC

Current Discharge and Applicant’s Request

Application Received:  20090821
Characterization of Service Received: (per DD 214) 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
	Narrative Reason change to: NONE REQUESTED

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	20010821 - 20011112  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  20011113	Age at Enlistment:  20
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  20040311	Highest Rank:  LANCE CORPORAL
Length of Service:  02  Year(s)  03  Month(s)  29  Day(s)
Education Level:  12	AFQT:  56
MOS:  0341
Proficiency/Conduct Marks (# of occasions):  4.1 (8) / 3.7 (8)	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	Rifle MM CAR SSDR NDSM PUC

Periods of UA/CONF:  NONE	NJP:  NONE	

SCM:  1

- 20030313:	Article 112a (Drugs - marijuana)
	Sentence: RIR E-1 HARD LABOR FOP

SPCM:  NONE	CC:  NONE	Retention Warning Counseling:  NONE

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.	Nondecisional issues: None
2.	Decisional issues: (Equity) - The Applicant contends that his service, both before and after the violation of UCMJ Article 112a, was honorable - including combat service to his nation.  As such, Applicant believes his characterization of service as Other than Honorable was inequitable and upon review warrants an upgrade to Honorable to reflect his overall service.

Decision

Date:  2010827	DOCUMENTARY REVIEW	Location: Washington D.C.	 Representation: NONE

By a vote of 5-0 the Characterization shall change to HONORABLE.
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 identified one decisional issue to the Board.  In reviewing the Applicant’s request, the Board completed a thorough review of the circumstances leading to his discharge and the discharge process to ensure the discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included no 6105 retention counseling warnings, and one summary court-martial (SCM) for violation of the UCMJ: Article 112a (Wrongful use, possession, etc. of a controlled substance – marijuana).  The Applicant did not have a pre-service drug waiver.  Additionally, the Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 20 August 2001.  Based on the Article 112a violation, processing for administrative separation was mandatory.  When notified of administrative separation processing using the administrative board procedure, the Applicant waived his right to consult with a qualified counsel but submitted a written statement and requested an administrative board hearing.

Issue 1: (Decisional) (Equity)  RELIEF WARRANTED.  The Applicant contends that his service, both before and after his violation of Article 112a, was honorable - including combat service to his nation.  As such, Applicant believes his characterization of service as Other Than Honorable was inequitable.

The Applicant contends that his discharge was inequitable as he had only one infraction on an otherwise stellar service record, which included combat service in the initial invasion of Iraq during Operation IRAQI FREEDOM and unit training and preparation to deploy to Afghanistan in support of Operation ENDURING FREEDOM.  The Applicant does not rebut the Summary Court Martial or the finding that he used illegal drugs; in fact, the Applicant admitted his wrongful use to his command, pleaded guilty at his Summary Court Martial, and again admitted wrongful use to the administrative discharge board.  Despite a service member’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.  The wrongful use of drugs is one of those serious offenses.  

The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Separation under these conditions normally results in characterization of service as Under Other Than Honorable Conditions.  The NDRB found there was credible evidence in the record that the Applicant used illegal drugs, the applicant was afforded all of his rights, and the mandatory processing for separation required for Marines who wrongfully use illegal drugs was proper; therefore, the board determined that no change in the narrative reason for separation is warranted.

The NDRB recognizes that serving in the Marine Corps is very challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required to serve their country.  It must be noted that most Marines serve honorably and therefore earn honorable discharges.  In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due.  An honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate.
  
In determining the Applicant’s discharge characterization of service, his conduct forms the primary basis.  The Applicant’s service record was marred by one Summary Court Martial for a single violation of Article 112a.  However, in this specific case, the Applicant’s command made a deliberate and conscious decision to forego the service norms and to retain the Applicant, with his unit, in his leadership billet, in preparation for, and ultimately, execution of, offensive combat operations, despite his conviction at a Summary Court Martial and the mandatory requirement to begin processing for administrative separation.  Instead of sending the Marine out of the combat zone, or back to a higher level of command not involved in direct offensive combat operations to begin the administrative separation processing, the command willfully chose to retain the Applicant in his leadership billet, which resulted in the Applicant’s direct combat engagements in the battle for An-Nasiriyah.  Compounding this action, the command then made him a provisional infantry team leader for clearing operations in the city.  During these combat actions, the Applicant served honorably, with risk to his life, for his country.  For his actions, he was awarded the Combat Action Ribbon for personal engagement with enemy forces.   The command’s decision to retain the Applicant in positions of responsibility and leadership and to continue to have special trust and confidence in his abilities runs contrary to the characterization of service he ultimately received.  By retaining the Applicant in theater, leaving him in a leadership position requiring special trust and confidence, and sending him into harms way at great risk to his life, the command validated his service as honorable and negated the isolated incident as the basis for the characterization of service.  As such, by a vote of 5-0, the board found the awarded characterization of service was inequitable and relief was warranted.

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 narrative reason for separation shall remain MISCONDUCT but the awarded characterization of service shall change to HONORABLE.

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. 

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