Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: lois.rojas
Company: NCPB

Docket No. MD11-00557

ex-LCpl, USMC

Current Discharge and Applicant’s Request

Application Received:  20101222
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)	20070618 - 20070826  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  20070827	Age at Enlistment:  18
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  20100225	Highest Rank:  CORPORAL
Length of Service:  02  Year(s)  05  Month(s)  29  Day(s)
Education Level:  12	AFQT:  54
MOS:  0621
Proficiency/Conduct Marks (# of occasions):  4.3 (7) / 4.2 (7)	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	Rifle EX (2), ICM (WITH 1 CAMPAIGN STAR), SSDR, GWOTSM, NDSM

Periods of UA/CONF:  None Found In Record

NJP:  1

- 20090917:	Article 112a (Wrongful use, possession, etc., of a controlled substance - wrongful use of MDMA (Ecstasy) per Naval Drug Lab confirmation - 842 ng/ml)
	Awarded: RIR, FOP, RESTR EPD, Gray Belt revoked        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:	☐	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

Nondecisional Issue: The Applicant seeks an upgrade in the characterization of her service at discharge in order to facilitate reenlistment in the Armed Forces.

Decisional Issues: The Applicant contends her characterization of service at discharge was inequitable; the misconduct was an isolated incident in what was an otherwise outstanding military career.  Additionally, the Applicant contends her characterization of service at discharge was inequitable in that it did not consider her personal circumstances, including an ongoing divorce and mental health history, which led to her poor judgment and were mitigating factors in her misconduct of record.

Decision

Date:  20120126	         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.  The NDRB completed a thorough review of the circumstances that led to the discharge action, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety.

The Applicant entered military service at age 18 on a four-year enlistment contract with a waiver to enlistment and induction standards due to pre-service illegal drug use (marijuana).  The Applicant acknowledged her complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs - in writing - on 16 June 2007 as a function of her enlistment waiver process.  The Applicant’s record of service documents a nonjudicial punishment for violation of the Uniform Code of Military Justice (UCMJ).  Specifically, the Applicant violated Article 112(a) (Wrongful use, possession, etc of a controlled substance; one specification of wrongful use of MDMA (Ecstasy), 842 ng/ml as confirmed by Naval Drug Lab testing).  Based on the Applicant’s violation of Article 112(a), processing for administrative separation was mandatory by service policy - as acknowledged by the Applicant in her understanding of the Marine Corps Policy Concerning Illegal Use of Drugs.  The Applicant completed one deployment as a MEF level communications support technician in the Al-Anbar Province of Iraq, supporting combat operations during Operation IRAQI FREEDOM (OIF).

The NDRB reviewed the Applicant’s discharge package to ensure the Applicant was afforded all rights, as required by the Marine Corps Separation and Retirement Manual (MARCORSEPMAN).  The Applicant was notified - in writing - on 08 December 2009 of the command’s intent to process her for administrative separation due to Misconduct (Drug Abuse) in accordance with paragraph 6210.5 of the MARCORSEPMAN, with a recommendation for characterization of service as Under Other Than Honorable Conditions.  The Applicant acknowledged the notification and elected to waive her right to consult with a qualified legal defense counsel or to request a hearing before an administrative hearing board to present her case for retention or characterization of her service.  The Applicant did not submit any written matters in rebuttal of the action to the Separation Authority.  After review by the Staff Judge Advocate, the Separation Authority determined that the evidence of record was sufficient in law and fact to support the proposed reason for discharge.  As such, on 02 February 2010, the Separation Authority directed the Applicant’s discharge Under Other Than Honorable Conditions pursuant to paragraph 6210.5 of the MARCORSEPMAN - Misconduct (Drug Abuse); he further directed that the Applicant receive an RE-4B re-entry code (not recommended for reenlistment - in service drug abuse).

Non-decisional Issue - The Applicant seeks an upgrade in the characterization of her service at discharge in order to facilitate 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.  Only the Board for Correction of Naval Records can make changes to reenlistment codes.  Additionally, there is no requirement, or law, that grants re-characterization solely on the issue of facilitating employment opportunities or access to veterans benefits programs.  Regulations limit the NDRB’s review solely to a determination of the equity and propriety of a discharge action when considering a change to an administrative discharge.  As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.

Decisional Issues (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant seeks an upgrade in the characterization of her service at discharge, contending that her current characterization was inequitable; the misconduct was an isolated incident in what was an otherwise outstanding military career.  Additionally, the Applicant contends her characterization of service was inequitable in that it did not consider her personal circumstances, including an ongoing divorce and mental health history, which led to her poor judgment and were mitigating factors in her misconduct of record.

Propriety - The Applicant was recommended for administrative separation in accordance with paragraph 6210.5 of the MARCORSEPMAN - Misconduct (Drug Abuse).  The Applicant was afforded the opportunity to consult with a qualified legal defense counsel and was notified properly of the proposed recommendation for separation; she acknowledged the separation process and elected her rights - in writing.  The Applicant was subject to a Battalion-level random urinalysis on 24 August 2009; Naval Drug Lab testing confirmed the Applicant’s sample as positive for the presence of MDMA (Ecstasy), 842 ng/ml - a controlled substance with no valid medical documentation to support its presence.  The test results, coupled with the Applicant’s admittance of wrongful use at NJP, did establish by a preponderance of evidence that the Applicant had violated Article 112(a) of the UCMJ.  Processing for administrative separation for illegal drug use was mandatory.  Based on the documentation of record, the NDRB determined that the separation was proper and the narrative reason for separation was accurate.  No relief based on propriety of the discharge action is warranted.

Equity - Despite a service member’s prior record of service, certain serious offenses, though isolated, warrant separation from the Naval Service in order to maintain good order and discipline of the service.  Violation of Article 112(a) is one such offense, requiring mandatory processing for administrative separation, regardless of grade, performance, service record, or time in service.  Moreover, this action usually results in an unfavorable characterization of service at 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 Applicant’s command did not opt to pursue a punitive discharge but instead chose the more lenient administrative separation process.  The Applicant admitted her guilt during the NJP and did not request a hearing before an administrative hearing board.  As such, the Separation Authority approved the command’s recommendation for separation and directed the Applicant be discharged Under Other Than Honorable Conditions.  

The Applicant contends her misconduct of record was the result of stress caused by her ongoing divorce, coupled with emotional issues related to pre-service sexual abuse and trauma.  The NDRB recognizes that serving in the military is challenging.  Most service members, however, serve honorably and therefore earn their Honorable discharges.  In fairness to those service members, commanders and Separation Authorities are directed to ensure that undeserving Marines receive no higher characterization than is due.  There is no evidence in the record, nor did the Applicant provide any factual documentation, to indicate she attempted to use 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 reviewed the Applicant’s in-service medical records - at no time did the Applicant seek assistance in dealing with her stated emotional and mental health issues, even though numerous opportunities were presented to her to receive help.  The Applicant was screened, evaluated, and diagnosed as alcohol dependent with substance abuse related event - she was enrolled in a 14-day intensive outpatient treatment program.  The record of this treatment program documents denial of any emotional or mental health issues outside guilt regarding her ongoing divorce.  Moreover, the service record documents that during her NJP, the Applicant admitted to being out drinking with hometown friends in a hotel and, when offered illegal drugs, she knowingly accepted.  Alcohol abuse is never a rationale or acceptable excuse for misconduct.  The NDRB determined that the Applicant’s personal problems, as stated, were not mitigating factors in her misconduct.

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.  An Under Other Than Honorable Conditions discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from that conduct expected of members of the Naval Service.  The NDRB determined the Applicant’s conduct - illegal drug use - did represent specific acts or omissions that constituted a significant departure from the conduct expected of a Marine.  By a vote of 5-0, the NDRB determined that the narrative reason for separation, and the resulting characterization of service at discharge, was proper, was equitable, was warranted, and was and still remains consistent with the characterization of discharge given others in similar circumstances.  Accordingly, 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, in-service medical records, and the discharge process, the NDRB determined that the discharge was proper and equitable as issued.  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 her 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 ther 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 ther 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 ther 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 ther 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