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

Docket No. MD10-00834

ex-LCpl, USMC

Current Discharge and Applicant’s Request

Application Received:  201000218
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)	20050726 - 20050911  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  20050912	Age at Enlistment:  18
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  20090515	Highest Rank:  CORPORAL
Length of Service:  03  Year(s)  08  Month(s)  04  Day(s)
Education Level:  12	AFQT:  60
MOS:  0481
Proficiency/Conduct Marks (# of occasions):  4.2 (9) / 4.2 (9)	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	Rifle EX ICM(w/1 bronze service star) SSDR GWOTSM NDSM NUC LoA

Periods of UA/CONF:  NONE

NJP:  1

- 20080620:	Article 112a (Wrongful use of controlled substance, THC (300 ng/ml) 
	Awarded: RIR FOP RESTR EPD  Suspended:  NONE

SCM:  NONE

SPCM:  NONE

CC:  NONE

Retention Warning Counseling:  2

- 20061218:	For violation of Articles 92 and 107 of the UCMJ. 

- 20081218:	For use of illegal drugs identified through urinalysis confirmed by NJP held on 20080620 at Combat Logistics Battalion-2, aboard Camp Lejeune, NC  

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:	☐	Rehabilitation/Treatment:	☐	Criminal Records:	☐
	Personal Documentation:	☐	Community Service:	☐	References:	☐
	Department of VA letter:	☐	Other Documentation:	☐
		Additional Statements:
	From Applicant:	☐	From/To Representation:	☐	From/To Congress member:	☐

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:  (Equity) The Applicant contends that the characterization of service at discharge that he received was inequitable; the illegal drug use was a singular, isolated incident in 41 months of otherwise honorable service including a 13-month combat deployment in support of Operation IRAQI FREEDOM.  
.
Decision

Date:  20110322	  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 identified one decisional issue for the NDRB’s consideration.  In reviewing the Applicant’s issue, the NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety.

The Applicant’s enlistment record reflects his entry into military service with a pre-service waiver for drug use without police involvement (marijuana).  The Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning the Illegal Use of Drugs - in writing - on 25 July 2005 as a condition of his enlistment.  He enlisted on a four-year contract with an enlistment guarantee for logistics and completed 3 years and 8 months of that service enlistment as a Landing Support Specialist.  Furthermore, the Applicant’s military service record documents that he is a combat veteran, having deployed to a designated combat zone in support of combat operations in the Al-Anbar province of Iraq as directed in support of Operation IRAQI FREEDOM (OIF) from February 2007 to March 2008.  

The Applicant’s record of service contains two 6105 retention-counseling warnings and one nonjudicial punishment for violation of the Uniform Code of Military Justice (UCMJ): Article 112(a) (Wrongful use, possession, etc of a controlled substance – THC (Marijuana), 300 ng/ml as identified by the Naval Drug Lab).  Based on the Article 112(a) violation, processing for administrative separation from the service was mandatory.  The NDRB reviewed the Applicant’s administrative separation package to ensure he was afforded all rights as required by the Marine Corps Separation and Retirement Manual (MARCORSEPMAN).  When notified of administrative separation processing using the administrative board procedure, the Applicant exercised his right to consult with a qualified counsel and to submit written matters to the Separation Authority, but chose to waive his right to request an administrative board hearing.  The Applicant provided no additional documentation for the NDRB’s consideration in his discharge review or to rebut any presumption of regularity by the NDRB. 

Issue 1:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends that the characterization of service at discharge that he received was inequitable; the illegal drug use was a singular, isolated incident in 41 months of otherwise honorable service including a 13-month combat deployment in support of Operation IRAQI FREEDOM.  The NDRB conducted a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety.  The Applicant was recommended for administrative separation in accordance with paragraph 6210.5 of the MARCORSEPMAN - Misconduct (drug abuse).  The Applicant was properly notified of the proposed separation processing and elected his rights - in writing.  The Separation Authority determined that the recommendations of the Applicant’s chain of command, coupled with a pre-service waiver for marijuana, supported the reason for separation and were sufficient in law and fact to support discharge.  

In accordance with the MARCORSEPMAN, the applicant was screened for substance abuse dependence through the Substance Abuse Rehabilitation Program (SARP) who further recommended that the Applicant receive intensive outpatient care treatment.  Due to the inability to schedule the Applicant for treatment prior to his separation, he was authorized treatment through the Department of Veterans Affairs (VA).  While being screened and evaluated at the SARP, the staff made a provisional diagnosis that included depression and possible Post-Traumatic Stress Disorder (PTSD) given the Applicant’s combat service in support of OIF.  However, the Applicant’s medical record does not contain any diagnosis of or treatment for PTSD - while in service or through the VA after discharge.  Thought the Applicant did not contend that PTSD was a mitigating factor in his misconduct, the NDRB reviewed the record in consideration of PTSD as possible mitigation.  The NDRB determined that the record clearly reflects willful misconduct by the Applicant that demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.        

Despite a service member’s prior record of service, certain serious offenses, though isolated, warrant separation from the Naval service in order to maintain proper order and discipline.  Violation of Article 112(a) is one such offense requiring mandatory processing for administrative separation, regardless of grade or time in service.  This action usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge with the possibility of confinement, if adjudicated and awarded as part of a sentence by a special or general court-martial.  The command did not opt to pursue a punitive discharge but instead chose the more lenient administrative discharge process.  The Applicant did not contest the separation action.  

On 05 May 2009, the Separation Authority approved the command’s recommendation for separation and directed the Applicant be discharged under other than honorable conditions for misconduct due to drug abuse pursuant to paragraph 6210.5 of the MARCORSEPMAN with a corresponding separation code of HKK1 (Drug Abuse – Board Waived).  The Applicant was discharged on 15 May 2009.  The NDRB determined that the separation was proper and the narrative reason for separation was accurate.  A change in narrative reason for separation would be inappropriate.  Relief denied.

Characterization of service at discharge is the recognition of a Marine’s performance and conduct during a period of enlistment and is not necessarily dependent upon the narrative reason for separation.  When the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under Honorable conditions.  A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record.  Finally, an Under Other Than Honorable Conditions characterization of service is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval service.  The NDRB determined the Applicant’s conduct, which forms the primary basis for determining the character of service, did reflect a significant departure from that conduct expected of a service member by one or more acts or omissions and the awarded characterization, as issued, was appropriate, was equitable, and was consistent with the characterization of discharge given others in similar circumstances.  Accordingly, relief is denied.

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 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 should refer to “Combat Veteran’s” at the Veterans Administration website (http://www1.va.gov/opa/Is1/1.asp) for additional help.  Combat Veterans: Effective Jan. 28, 2008, veterans discharged from active duty on or after Jan. 28, 2003, are eligible for enhanced enrollment placement into Priority Group 6 (unless eligible for higher enrollment Priority Group placement) for 5 years post discharge.  For additional information, call 1-877-222-VETS (8387).

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