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

Docket No. MD11-00577

ex-PFC, USMCR

Current Discharge and Applicant’s Request

Application Received:  20110104
Characterization of Service Received: UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge: MISCONDUCT
Authority for Discharge: 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:	NONE		Active:	20020114 - 20020615 (IADT - HON)

Period of Service Under Review:
Date of Current Enlistment:  20011214	Age at Enlistment:  19
Period of Enlistment:  8 Years  0 Months  [6x2 Reserve Optional Enlistment Program] 
Date of Discharge:  20030901	Highest Rank:  PRIVATE FIRST CLASS
Length of Service:
	Inactive:	01  Year  03  Months  18  Days
	Active:	00  Years  05  Months  01  Day
Education Level:  12	AFQT:  44
MOS:  0311
Proficiency/Conduct Marks:  Not Found in Service Record	      Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	Rifle SS 

Periods of UA/CONF:  NONE

NJP:  1
- 20021207:	Article 112a (Wrongful use, possession, etc of a controlled substance - marijuana, 33 ng/ml)
	Awarded: RIR, FOP       Suspended:  RIR

SCM:  NONE	SPCM:  NONE	CC:  NONE	

Retention Warning Counseling:  None found in record

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 in order to facilitate reenlistment in the Armed Forces.

2.	Decisional issues: The Applicant contends his characterization of service at discharge was inequitable; his youth and immaturity at the time led to poor judgment and is a mitigating factor to his 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 Applicant identified one decisional issue for the NDRB’s consideration - equity of the discharge characterization.  Additionally, 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 19 on an eight-year reserve enlistment contract with a guarantee of Infantry Training.  The Applicant’s enlistment record reflects entry into military service with two waivers to enlistment and induction standards: pre-service illegal drug usage (marijuana) and minor moral waiver for misdemeanor penalty of providing alcohol to minors.  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 12 December 2001.  The Applicant completed his Initial Active Duty for Training and one year and three months of his drilling obligation with the Selected Marine Corps Reserve.  The Applicant’s record of service contains one nonjudicial punishment for violation of the Uniform Code of Military Justice (UCMJ): specifically, Article 112(a) (Wrongful use, possession, etc of a schedule I, controlled substance - marijuana).  Based on the Applicant’s violation of Article 112(a), processing for administrative separation was mandatory by acknowledged service policy.  The Applicant’s service record contains a complete copy of the administrative discharge package, which was reviewed to ensure the Applicant was afforded all rights as provided in the Marine Corps Separation and Retirement Manual (MARCORSEPMAN).

The Applicant was notified - in writing - of the Command’s intent to process the Applicant for administrative separation for Misconduct (Drug Abuse) in accordance with paragraph 6210.5 of the MARCORSEPMAN.  The Applicant was further advised that the least favorable characterization of his service at discharge was Under Other Than Honorable Conditions and that characterization was what the Command was recommending he be awarded.  The Applicant acknowledge the notification in writing and elected his rights.  He chose to waive his right to consult with a qualified legal defense counsel, to elect an administrative discharge hearing board, and he declined to submit a statement 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 discharge action.  He reviewed the chain of command’s recommendations regarding characterization of service, to include his reserve Commanding Officer’s evaluation of his recent performance of duties.  On 09 July 2003, the Separation Authority directed that the Applicant be discharged with an Under Other Than Honorable Conditions characterization of service for Misconduct (Drug Abuse), pursuant to paragraph 6210.5 of the MARCORSEPMAN.  He further directed that, upon his discharge, the Applicant receive an RE-4B re-entry code (not recommended for reenlistment, in service drug abuse).
  
(Non-decisional Issue)  The Applicant seeks a change in his characterization of 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 restricted from changing a reentry code.  Additionally, there is no requirement, or law, that grants re-characterization solely on the issue of facilitating reenlistment or employment opportunities or access to veterans benefits programs.  Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge.  As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.

(Decisional issue) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends his characterization of service at discharge was inequitable; his youth and immaturity at the time led to poor judgment and is a mitigating factor to his misconduct of record.  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.  The Separation Authority approved the command’s recommendation for separation and directed the Applicant be discharged for Misconduct (Drug Abuse) pursuant to paragraph 6210.5 of the MARCORSEPMAN.  The Applicant was discharged on 01 September 2003.

The Applicant did not contest the separation action and waived his right to defend himself at an administrative board hearing and provided no explanation or any other matters for consideration by the Separation Authority.  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.

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.  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 Applicant was fully aware of the Marine Corps policy on illegal drug use and chose to violate it; he enlisted with a waiver for the wrongful use of marijuana (approximately 50 times) and he knowingly violated that waiver and the Marine Corps’ policy with the continued illegal use of marijuana.  The illegal drug use was properly documented and was validated by Naval Drug Lab urinalysis testing.  The NDRB determined the Applicant’s conduct, which forms the primary basis for determining the character of service, reflected an act or omission that constituted a significant departure from that conduct expected of a service member.  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 is denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, and the discharge process, the NDRB determined that 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