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

Docket No. MD09-02347

ex-PFC, USMCR

Current Discharge and Applicant’s Request

Application Received:  20090820
Characterization of Service Received: (per DD 214) UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge: (corrected) 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:	NONE		Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  20041027	Age at Enlistment:  22
Period of Enlistment:  8 Years  0 Months
Date of Discharge:  20060907	Highest Rank:  LANCE CORPORAL
Length of Service:
	Inactive:	01  Year(s)  02  Month(s)  06  Day(s)
	Active:	00  Year(s)  08  Month(s)  07  Day(s)

Education Level:  12	AFQT:  51
MOS:  3051
Proficiency/Conduct Marks (# of occasions):  3.9 (NFIR) / 4.0 (NFIR)	Fitness Reports:  NOT APPLICABLE

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

Periods of UA/CONF:  NONE

NJP:  1

- 20060707:	Article 112a (Drugs - cocaine 194 ng/ml)
	Awarded: RIR FOP  Suspended:  NONE

SCM:  NONE

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.

C.  Marine Forces Reserve Force Order P5800.6A (MarForRes Legal Standard Operating Procedures)

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

Applicant’s Issues

1.Decisional issues:  (Propriety) Applicant contends that he was unjustly accused and processed for separation due to chain of custody errors involved with the Command Directed Urinalysis test samples; as such, he should not have received Nonjudicial Punishment nor been separated from the service with an Under Other than Honorable Conditions characterization of service.

Decision

Date:  20100902	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 change to SECRETARIAL AUTHORITY

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.  

The Board completed 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 no retention counseling warnings and one Nonjudicial Punishment for violation of the Uniform Code of Military Justice (UCMJ): specifically, Article 112a (Wrongful use, possession, etc of a controlled substance).  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.  

Confirmed illegal use of drugs in the Marine Corps requires mandatory processing for administrative separation.  The NDRB reviewed the Applicant’s administrative discharge package for propriety and equity.  When notified of administrative separation processing using the board notification procedure, the Applicant exercised his right to consult with a qualified counsel, did not request a hearing before an administrative discharge board, and did not elect to submit a written statement.  In reviewing the Applicant’s discharge, the board noted multiple propriety issues for consideration.       

The Applicant provided documentation for the Board’s consideration and to rebut the government’s presumption of regularity in the conduct of affairs, which included his personal statement to the board and a complete copy of his administrative separation package, to include correspondence between his chain of command regarding the separation and the Naval Drug Lab confirmation message.

Issue 1:  (Decisional) (Propriety/Equity) RELIEF WARRANTED.  The Applicant contends that he was unjustly accused and processed for separation due to chain of custody errors involved with the Command Directed Urinalysis test samples.  In this case, the evidence provided by the Applicant rebuts the government’s presumption and highlighted errors in both propriety and equity of the discharge.  The Applicant was a satisfactorily participating member of the Selected Marine Corps Reserve (SMCR).  The unit was activated for a combat deployment to Iraq in support of OPERATION Iraqi Freedom.  The Inspector Instructor (I-I) staff and the Reserve Command conducted a command directed unit sweep urinalysis on the first day of the activation and mobilization process.  Naval Drug Lab Jacksonville, Fl message 121957Z JUN 06 identified the Applicant’s sample as testing positive for Cocaine, a Class II controlled Narcotic.  The company site I-I held a Nonjudicial Punishment and found the Applicant guilty of violating Article 112a of the UCMJ; the applicant was reduced in rank and ordered to forfeit 2/3s of 1 month’s pay for two months.  The I-I recommended administrative discharge by reason of Misconduct-Drug Abuse with a characterization of service as Under Other Than Honorable Conditions.  The separation was approved and ordered executed by the separation authority.  

Sub-Issue 1: (Propriety) – The drug use occurred before the first day of active duty, while the reserve member was in a civilian status; as such, the NJP authority did not have jurisdiction over the offense.  Without jurisdiction, the NJP is improper and relief is warranted.

Sub-Issue 2:  (Propriety) – Per the Manual for Courts-Martial and Commander Marine Forces Reserve Force Order 5800.6A, the officer exercising the NJP exceeded his authorities under Article 15 Punishment Limitations.  The Company Level I-I (though a field grade officer) did not have reduction authority and exceeded the forfeiture of pay limitations authorized for his level of NJP authority.  The punishment awarded at the NJP exceeded the authority vested in the NJP authority and was improper; relief is warranted.   

Sub-Issue 3: (Propriety/Equity) – The Naval Drug lab message is the evidence of confirmed drug use and forms the legal basis for the administrative discharge process.  The message clearly articulated that the chain of custody for the sample was incorrect.  Without a valid and continuous chain of custody, the validity of the sample being the Applicants is in question.  Though admissible in a Court Martial, the weight of the evidence would be in challenge; given the severity of the outcome, the benefit of doubt traditionally has gone to the Applicant.  Additionally, the administrative separation package submitted to the separation authority included the wrong Urinalysis Batch Log Sheet.  The log sheet is a mandatory document for inclusion in the separation package as it identifies the urine batch and specimen number to the Applicant by the signatures of both the Applicant and the observer.  It is the basis for establishing the chain of custody of the sample and that the sample is the Applicants.  The command failed to provide the necessary basis for the administrative discharge to be proper in law and fact.  Without a proper chain of custody and confirmation that the sample was the Applicants, the validity of the sample is in doubt.  As such, under both propriety and equity, relief is warranted.    

Sub-Issue 4: (Equity) – The Nonjudicial Punishment and counseling regarding illegal use of drugs formed the basis for the discharge characterization of service of Under Other Than Honorable Conditions.  Furthermore, prior to the NJP, the Applicant’s Proficiency and Conduct marks, in service, were 4.1 and 4.2, respectively.  Without the NJP and its corresponding reduction pro/con marks, the Applicant’s service record warrants a characterization of service as Honorable.  Accordingly, under equity, relief is warranted.

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 both improper and inequitable.  Therefore, the awarded characterization of service shall change to HONORABLE and the narrative reason for separation shall change to SECRETARIAL AUTHORITY.

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