Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: chananuch.reed
Company: NCPB

Docket No. MD10-02024

ex-Pvt, USMC

Current Discharge and Applicant’s Request

Application Received:  20100813
Characterization of Service Received: (per DD 215) 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)	20060628 - 20070603  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  20070604	Age at Enlistment:  18
Period of Enlistment:  5 Years  0 Months
Date of Discharge:  20080212	Highest Rank:  PRIVATE
Length of Service:  00  Year(s)  08  Month(s)  08  Day(s)
Education Level:  12	AFQT:  74
MOS:  6256

Proficiency/Conduct Marks (# of occasions):  4.1 (2) / 4.1 (2)	Fitness Reports:  NOT APPLICABLE

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

Periods of UA/CONF:  NONE

NJP:  1
- 20080117:	Article 91 (Failure to obey lawful order or regulation, 2 specifications)
	  Specification 1: Have a permanent tattoo of a marijuana leaf and the date 4-20 drawn on the back of right  
                                                    hand in violation of MCO 1020.34G
	  Specification 2: Admitted to consuming alcohol while under the legal age to do so
	Article 112a (Wrongfully use, possession, etc of a controlled substance - marijuana)
	Awarded: FOP RESTR EPD  Suspended:  NONE

SCM:  NONE	SPCM:  NONE	CC:  NONE

Retention Warning Counseling:  3
- 20080117:	For poor judgment, failure to follow rules and regulations.  Specifically, on 20080105, you had a permanent tattoo of a marijuana leaf and the date 4-20 drawn on the back of your right hand, in violation of MCO 1020.34G.  You further compounded the situation by consuming alcohol while under the legal age to do so.  Furthermore, while on leave you wrongfully used a controlled substance, marijuana.  This type of conduct is unsatisfactory and unacceptable!

- 20080131:	For poor judgment and failure to follow rules and regulations.  Specifically, on 20080105, you admitted to wrongful use of a controlled substance, marijuana.  This type of conduct is unsatisfactory and unacceptable!

- 20080131:	For poor judgment, failure to follow rules and regulations.  Specifically, on 20080124, you failed to field day your barracks room in violation of MUO 11012.1.  This type of conduct is unsatisfactory and unacceptable!

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.	Nondecisional issues: The Applicant seeks an upgrade in the characterization of his service at discharge to General (Under Honorable Conditions) and a change in the assigned re-entry code in order facilitate his reenlistment in the Armed Forces.

2.	Decisional issues: The Applicant contends that his discharge was inequitable due to mitigating factors of his family problems, depression, and immaturity.  Additionally, the Applicant contends that his discharge was in inequitable because he was being recommended by the command for a General (Under Honorable Conditions) characterization but received an Other Than Honorable Conditions characterization from the Separation Authority.  

Decision

Date:  20110825	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 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.  Additionally, the NDRB completed a thorough review of the circumstances that led to the discharge, and the discharge process, to ensure his discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included three paragraph 6105 retention-counseling warnings and one nonjudicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ), specifically, Article 91 (Failure to obey lawful order or regulation, 2 specifications) and Article 112a (Wrongful use, possession, etc of a controlled substance, 1 specification: illegal use of marijuana).  The Applicant’s service record contains no other punitive or non-punitive punishments.    

The Applicant entered the service without the requirement for any waivers to service induction and enlistment standards.  He completed 8 months of his four year enlistment before being discharged for Misconduct.  He acknowledged, in writing, his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 26 June 2006 as a function of the enlistment process.  Based on the Applicant’s violation of Article 112(a) of the UCMJ, processing for administrative separation was mandatory.  

(Nondecisional issue)  The Applicant seeks an upgrade in the characterization of his service at discharge to General (Under Honorable Conditions) and a change in his assigned re-entry code to facilitate his reenlistment in the Armed Forces.  The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the armed forces, and is not authorized to change a reentry code.  Regulations specifically limit the NDRB’s review to a determination of the propriety and equity of a discharge.  A request for a waiver may be submitted during the processing of a formal application for reenlistment through a recruiter; neither a less than fully honorable discharge, nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  The NDRB is not authorized to change the reentry code as requested.  The Applicant should petition the Board for Correction of Naval Records (BCNR) using DD Form 149.  When requesting a change, the Applicant should provide as much documentation regarding the reason for change as possible.  The BCNR’s address is: Board for Correction of Naval Records, 2 Navy Annex, Washington, DC 20370-5100.  Further information can be found online at http://www.donhq.navy.mil/bcnr/bcnr.htm.  

(Decisional Issue) (Equity/Propriety) RELIEF NOT WARRANTED.  The Applicant contends that his discharge was inequitable due to mitigating factors of his family problems, depression, and immaturity.  Additionally, the Applicant contends that his discharge was inequitable because he was being recommended by the command for a General (Under Honorable Conditions) characterization, but received an Other Than Honorable Conditions characterization from the Separation Authority.  

The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service.  A retention warning and a nonjudicial punishment for violation of the Uniform Code of Military Justice marred the Applicant’s service.  Violation of Article 112a (drugs-marijuana) by service policy requires mandatory processing for separation.  The Applicant acknowledged his full understanding of the service policy – in writing – as a function of his enlistment agreement with the Marine Corps.  Violation of Article 112(a) is a serious offense, punishable by punitive discharge and confinement if adjudicated by a special or general court-martial.  The command did not pursue a punitive discharge, but instead, opted for the more lenient administrative discharge.

The Applicant contends his disciplinary problems were the result of stress caused by family problems, depression, and wanting to get out of his enlistment contract.  The NDRB recognizes that serving in the U.S. Marine Corps is challenging.  However, there is no evidence in the record, nor did the Applicant provide any documentation, to indicate he attempted to utilize the numerous services available for service members who undergo personal problems during their enlistment such as the Navy Chaplain, Medical or Mental Health professionals, Navy Relief Society, Family Advocacy Programs, or even the Red Cross.  The NDRB determined the Applicant’s personal problems were not mitigating factors in his misconduct.  

The Applicant contends that his discharge was in inequitable because he was being recommended by the command for a General (Under Honorable Conditions) characterization, but received an Other Than Honorable Conditions characterization from the Separation Authority.  The NDRB reviewed the Applicant’s administrative discharge package; when notified of administrative separation processing using the administrative board notification procedure, the Applicant waived his rights to consult with a qualified counsel, to submit a written statement, and to request an administrative board hearing.  He further acknowledged his understanding that the least favorable characterization of his service at discharge was Under Other Than Honorable Conditions and that the Separation Authority, not his Commander, would make the final determination.  The Commanding Officer stated he was recommending an Under Other Than Honorable Conditions characterization in the notification letter to the Applicant.  In the recommendation to the Separation Authority, the Commander proposed the Applicant receive a General (Under Honorable Conditions) characterization of his service.  As stated above, the Separation Authority has the final determination on characterization of service; based on all the available evidence presented to him, he directed the Applicant’s discharge be Under Other Than Honorable Conditions.

Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Marine Corps.  The Applicant violated the Marine Corps tattoo policy by tattooing a marijuana leaf on the exposed backside of his hand with “420” below it - indicating he was “marijuana and drug friendly.”  Moreover, he admitted to illegal use of marijuana while in service at home on leave.  Given the Applicant’s own sworn statement, coupled with his tattoo, a preponderance of evidence was established that supported the discharge action.  There is no evidence of impropriety, inequity, or procedural irregularities in the Applicant’s discharge.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflected a willful failure to meet the requirements of his contract with the U.S. Marine Corps and fell far short of that required for an upgrade of his characterization of service.  Relief as requested is denied.

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 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 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