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

Docket No. MD10-01552

ex-LCpl, USMC

Current Discharge and Applicant’s Request

Application Received:  20100609
Characterization of Service Received: (corrected) UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge: (per DD 214) IN LIEU OF TRIAL BY COURT MARTIAL
Authority for Discharge: (per DD 214) MARCORSEPMAN 6419 [IN LIEU OF TRIAL BY COURT MARTIAL]

Applicant’s Request:	Characterization change to: HONORABLE
	Narrative Reason change to: NONE REQUESTED

Summary of Service
Prior Service:
Inactive:	USMCR (DEP)	19900620 - 19910617  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  19910618	Age at Enlistment:  18
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  19950630	Highest Rank:  LANCE CORPORAL
Length of Service:  04  Year(s)  00  Month(s)  12  Day(s)
Education Level:  12	AFQT:  43
MOS:  3051
Proficiency/Conduct Marks (# of occasions):  4.5 (11) / 4.5 (11)	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	Rifle MM, NMCAM, NDSM, SSDR, LoA, CoC

Periods of UA/CONF:  NONE

NJP:  1
- 19920303:	Article 121 (Larceny by stealing one pair of shoes)
	Awarded: RIR FOP  Suspended:  NONE

SCM:  NONE	SPCM:  NONE	CC:  NONE

Retention Warning Counseling:  1
- 19940920:	For failure to be at appointed place of duty

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.  6203, CONVENIENCE OF THE GOVERNMENT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 June 1989 until 17 August 1995.

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

Decisional issues: The Applicant contends that the discharge action was inequitable, because it was based on an isolated incident in 38 months of service with no other adverse actions.    

Decision

Date:  20111005	       DOCUMENTARY REVIEW	Location: Washington D.C.	 Representation: NONE

By a vote of 3-2 the Characterization shall change to GENERAL (UNDER HONORABLE CONDITIONS).
By a vote of 5-0 the Narrative Reason shall remain IN LIEU OF TRIAL BY COURT MARTIAL.

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 NDRB 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; he provided no additional documentation to rebut the NDRB’s presumption of regularity in governmental affairs.  However, the Applicant did provide a series of documentation regarding his conduct since discharge for consideration.  

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 both equity and propriety.  The Applicant’s enlistment record reflects entry into military service with a waiver to enlistment standards for pre-service illegal drug use - marijuana.  He enlisted under a mechanical option guarantee contract for 4 years of active duty military service.  During the enlistment waiver process, the Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning the Illegal Use of Drugs, in writing, on 25 June 1990.  Furthermore, the Applicant’s service record documents that he is a combat veteran, having served honorably in Somalia, in support of Operation RESTORE HOPE from 17 December 1992 to 27 February 1993; during this deployment he was awarded a Navy and Marine Corps Achievement Medal for his outstanding meritorious performance of duties.  

The Applicant’s record of service documents one Marine Corps Separation and Retirement Manual (MARCORSEPMAN) paragraph 6105 retention-counseling warning and one nonjudicial proceeding for violation of Article 121 of the Uniform Code of Military Justice (UCMJ) – Larceny, for stealing a pair of shoes.  Moreover, the Applicant’s service record further documents a pending charge for violation of Article 112(a) (Wrongful use, possession, etc of a controlled substance – marijuana).  Based on the Article 112(a) violation, processing for separation from the service was mandatory.  The Applicant’s command chose to refer the violation of Article 112(a) to trial by Special Court-Martial.  The Applicant’s military record contains a copy of the separation proceedings.  In order to warrant separation in lieu of trial by court-martial, the Applicant must request separation - in writing - for the good of the service to escape charges that have been preferred against the Applicant and referred to trial by a Special Court-Martial or above.  The Applicant was referred to trial by Special Court-Martial on 05 May 1995.  The Applicant submitted his request for separation in lieu of trial on 31 May and it was approved on 19 June.    

The request for separation contained certain basic requirements - which must be satisfied - before receiving approval by the Separation Authority.  In the request, the Applicant clearly affirmed that his rights were explained to him thoroughly - to include his right to consult with qualified counsel, which he did.  Furthermore, the Applicant admitted his guilt to the charges preferred against him and further certified that he had a complete understanding of the negative consequences of his actions, the narrative reason for his separation, and the likely characterization of service upon separation - Under Other Than Honorable Conditions.  The respondent acknowledged that if discharged with an OTH, it might deprive him of virtually all veterans benefits and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered, or the character of discharge received, may have a bearing.

(Decisional Issue) (Propriety/Equity)  PARTIAL RELIEF WARRANTED.  The Applicant contends that the discharge action was inequitable, because it was based on an isolated incident in 38 months of service with no other adverse actions.  The Applicant requested administrative separation for the good of the service in order to avoid trial by court-martial; he consulted with, and was represented by, an appropriately credentialed legal defense counsel throughout the process.  The request for separation satisfied all the elements established by the MARCORSEPMAN; as such, the command accepted the Applicant’s request.  The Applicant was separated properly from the Naval Service in accordance with chapter 6419 of the MARCORSEPMAN.  Accordingly, relief based on propriety is not warranted.

The Applicant contends that his illegal use of drugs was an isolated incident.  Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Naval 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 process usually results in an unfavorable characterization of service at 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 Applicant tested positive for the metabolites of marijuana by naval drug lab urine sample testing; his command chose to pursue punitive trial by court-martial instead of the more lenient administrative discharge.  Per the MARCORSEPMAN, all Marines identified for mandatory processing under the criteria of drug abuse will be processed for administrative separation on the first offense.  

Although the Applicant did not specify it on his Application for discharge review, his personal statement indicated a problem with Post-Traumatic Stress Disorder (PTSD) upon returning from Somalia and integrating back into his pre-combat service life.  The Applicant’s statement contends that his misconduct of record was resultant from diminished coping skills as he was suffering from undiagnosed PTSD, which was a mitigating factor.  The government enjoys a presumption of regularity in the conduct of its affairs; the Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  After an in-depth review of the Applicant’s records, there were no documented indicators of PTSD.  The Applicant did not provide any documentary evidence from civilian mental health care professionals or from the VA medical system to support a diagnosis of PTSD for consideration in mitigation of the misconduct.  The NDRB reviewed the Applicant’s proficiency and conduct (pro/con) marks and his overall service record.  Of note in the Applicant’s separation process, the Applicant’s proficiency and conduct markings were substantially above average, and he received markings of 4.8/4.8 just prior to his separation proceedings.

The characterization of service at discharge is recognition of a Marine’s performance and conduct throughout 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.  However, 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.  

Given the facts of the record, the information provided by the Applicant, and the Applicant’s combat service, the NDRB determined that the Applicant’s conduct, which forms the primary basis for determining the character of his service, was honest and faithful, but significant negative aspects of the member’s conduct did outweigh the overall positive aspects of his record.  Additionally, the NDRB determined that mitigation for unique circumstances in the case was warranted.  As such, given the facts and circumstances unique to this case, the NDRB determined partial relief is warranted based on equitable grounds.  The NDRB voted 3-2 to upgrade the characterization of service at discharge to General (Under Honorable Conditions), but that no change to the narrative reason for separation is warranted.  Full relief to Honorable was not granted due to the two incidents of misconduct.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, and discharge process, the NDRB determined that 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 IN LIEU OF TRIAL BY COURT MARTIAL.  Due to the passage of time since the date of discharge (in excess of 15 years), the Applicant is no longer eligible for review by the NDRB.  The Applicant is directed to the Board for Corrections of Naval Record for any remaining issues regarding his service.  

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