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

Docket No. MD11-00644

ex-LCpl, USMC

Current Discharge and Applicant’s Request

Application Received:  20110113
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)	20030530 - 20040127  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  20040128	Age at Enlistment:  20
Period of Enlistment:  4 Years  5 Months
Date of Discharge:  20090318	Highest Rank:  CORPORAL
Length of Service:  05  Year(s)  01  Month(s)  19  Day(s)
Education Level:  GED	AFQT:  55
MOS:  3531
Proficiency/Conduct Marks (# of occasions):  4.1 (12) / 4.0 (12)	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	Rifle MM Pistol MM GCM ICM(2) SSDR GWOTSM NDSM MM

Periods of CONF:  NONE

NJP:  1

- 20041109:	Article 86 (On or about 0030 - 20041031) without authority absent himself from his of duty and did remain absent until on or about 0500 - 20041031)
	Article 92 (Fail to obey lawful order or regulation by wrongfully consuming alcohol prior to assuming duty)
	Awarded: FOP RESTR EPD  Suspended:  NONE

SCM:  NONE

SPCM:  1

- 20081120:	Article 112a (Wrongful use, possession, etc of a schedule II controlled substance – Cocaine 2,544 ng/ml)
	Sentence:  RIR E-3, FOP.  [In accordance with the Convening Authority’s referral of charges certification, a Bad Conduct discharge was not an authorized punishment in this trial by Special Court-Martial.]   

CC:  NONE

Retention Warning Counseling:  2

- 20041115:	For failure to secure military identification card

- 20041116:	For reclassification from intended Military Occupational Skill (M1A1 Tank Crewman to Motor Vehicle Operator) 

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 and a change in the narrative reason for separation in order to facilitate access to Department of Veterans Affairs (VA) health care benefits.  

2.	Decisional issues: (1) The Applicant contends that his Post-Traumatic Stress Disorder (PTSD) symptoms and back injury from his combat deployment are mitigating factors to his misconduct, requiring an upgrade to his characterization of service at discharge.  (2) The Applicant contends that his honest and meritorious service should be seen as mitigating factors to his post-injury misconduct, requiring an upgrade to his characterization of service at discharge.  (3) The Applicant contends that his urinalysis test results were a false positive, and he did not use cocaine, thereby warranting a change in his narrative reason for discharge to Secretarial Authority.

Decision

Date:  20110915               DOCUMENTARY REVIEW	Location: Washington D.C.	 Representation: Civilian Counsel

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

In accordance with U.S. Code, Title 10, Section 1553 (d) (1), the Board included a member who is a physician, clinical psychologist, or psychiatrist .  In accordance with section 1553 (d) (2), the service secretary expedited a final decision and accorded the case sufficient priority to achieve an expedited resolution.    

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 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 the standards of discipline of the Naval Service.  The Applicant submitted three decisional issues for the NDRB’s consideration.  Additionally, 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 entered military service at age 20 with waiver to enlistment and induction standards for pre-service drug use (marijuana).  The Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs - in writing - on 27 May 2003 as a condition of his enlistment waiver process.  The Applicant enlisted with a guaranteed contract for Combat Support, but transitioned to Equipment/Vehicle Repair Option after being dropped from the M1A1 Tank School.  The Applicant’s military service record documents that he is a combat veteran, having served honorably during a combat deployment in the Al-Anbar Province of Iraq in support of Operation IRAQI FREEDOM from August 2005 to August  2006.  The Applicant’s official record of service includes two paragraph 6105 retention-counseling warnings and a nonjudicial punishment for violations of the Uniform Code of Military Justice (UCMJ), specifically, Article 86 (Absence without leave - absenting himself from his appointed place of duty without authority) and Article 92 (Failure to obey a lawful order or directive).  Additionally, the Applicant was subject to a Special Court-Martial for the wrongful use, possession, etc of a Schedule II controlled substance (wrongful use of Cocaine (2544 ng/ml) on 20081120.  In this specific court-martial, the Convening Authority did not authorize a punitive discharge (Bad Conduct discharge) as a form of punishment.  Based on the Article 112(a) violation, by service policy, processing for administrative separation was mandatory.  When notified of the administrative separation process using the board notification procedure, the Applicant elected his right to consult with a qualified legal counsel and elected his right to present his case for retention to an administrative hearing board.  The Applicant was advised in writing that the least favorable characterization of service he could receive was Under Other Than Honorable Conditions and that characterization was what the Commander was recommending.  In accordance with the Applicant’s election 

of rights, a dually constituted administrative discharge board heard the Applicant’s case regarding his administrative separation: by a vote of 3-0, the Board found a preponderance of the evidence supported the finding that misconduct had occurred as alleged in the notification; by a vote of 3-0, the Board recommended separation without suspension; and, by a vote of 3-0, the board recommended the Applicant’s characterization of service at discharge be Under Other Than Honorable Conditions.  The Separation Authority reviewed the findings and concurred with the board’s recommendations; on 18 March 2009, the Applicant was discharged and assigned a corresponding re-entry code of RE-4B (not recommended for reenlistment, drug abuse).

(Non decisional issue)  The Applicant seeks an upgrade in the characterization of his service at discharge and a change in the narrative reason for separation in order to facilitate access to Department of Veterans Affairs (VA) health care benefits.  There is no requirement, or law, that grants re-characterization solely on the issue of facilitating VA benefits eligibility.  As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.  Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities or employment opportunities.  Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge.

(Decisional issues) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends that his characterization of service at discharge was inequitable: specifically, (1) the Applicant contends that his PTSD symptoms and back injury from his combat deployment are mitigating factors to his misconduct, requiring an upgrade to his characterization of service at discharge; (2) the Applicant contends that his honest and meritorious service should be viewed as mitigating factors to his post-injury misconduct, requiring an upgrade to his characterization of service at discharge; and (3) the Applicant contends that his urinalysis test results were a false positive, and he did not use cocaine, thereby warranting a change in his narrative reason for discharge to Secretarial Authority.

(Propriety)  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.  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, non-punitive administrative discharge process following conviction at a Special Court-Martial in which punitive discharge was not an authorized form of punishment by order of the Convening Authority.  Based on the seriousness of the offense committed during the Applicant’s enlistment, the chain of command recommended separation with an Under Other Than Honorable Conditions characterization of service at discharge.  The Applicant’s service record reflects that he was advised properly on the separation recommendation by his chain of command; he was afforded the opportunity to exercise his rights and acknowledged all such in writing, to include presenting his case for retention to a board of members.  The Separation Authority reviewed the evidence of record and the administrative discharge board findings and concurred with the determination that a preponderance of the evidence satisfied the requirements as outlined in the applicable regulation (MARCORSEPMAN - paragraph 6210.5 Misconduct (Drug Abuse)); accordingly, he directed the Applicant be discharged.  He was assigned a corresponding reentry code of RE-4B (not recommended for reenlistment – in service drug abuse).  The NDRB determined that the evidence of record did establish the basis for discharge and that the actions were proper.  Accordingly, relief based on propriety is not warranted.

Decisional Issue 1 (Equity) The Applicant contends that his PTSD symptoms and back injury from his combat deployment are mitigating factors to his misconduct, requiring an upgrade to his characterization of service at discharge.  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.  The NDRB requested the Applicant’s medical treatment records, but the VA was unable to locate them; as such, the NDRB relied on the medical service record provided to the board by the Applicant.  The Applicant’s contention that he suffered “anxiety attacks” while home on a period of R&R during his one-year tour of duty in Iraq is documented on the Post-Deployment Health Assessment dated 26 July 2006.  The Applicant was recommended to conduct a follow-up with mental health care providers upon return to his home station.  The NDRB found no reference to any evaluations or medical diagnosis of PTSD in the Applicant’s service record to support his claim, and the Applicant did not provide any documentary evidence of a medical diagnosis by competent medical authorities to support his claim.  Post-combat deployment, the Applicant was seen by medical authorities, extensively, due to back injuries and a period of medically assigned limited duty; the Applicant had weekly opportunities to seek mental health referrals or to discuss any symptoms of PTSD that he believed he may be suffering from, but did not.  Though the Applicant may feel that PTSD was the underlying cause of his misconduct, the record reflects willful and deliberate misconduct that demonstrated he was unfit for further service.  Cocaine use, as confirmed by urinalysis testing, was a conscious and deliberate decision to violate the tenants of honorable and faithful service and a widely disseminated and well-known policy.   Accordingly, relief as requested is denied.

The Applicant should be aware that the VA has announced special VA enrollment access for PTSD and mental health treatment to combat veterans discharged under other than dishonorable conditions (i.e., all discharges other than a Bad Conduct or Dishonorable discharge as issued by a Special or General Court-Martial).  Effective Jan. 28, 2008, combat veterans discharged from active duty on or after Jan. 28, 2003, are eligible for combat veteran enhanced eligibility and enrollment placement into Priority Group 6 (unless eligible for higher enrollment Priority Group placement) for 5 years post discharge.  Additionally, the VA determines the eligibility for enrollment in its programs independent of the Applicant’s characterization of service as determined by the Marine Corps.  The Applicant, as a combat veteran, is encouraged to contact his local VA affairs representative for more information and may request a compensation and pension (C&P) exam to establish his service connected eligibility for possible treatment of PTSD.  Alternately, he may call 1-877-222-8387 or visit the following website for more information:  http://www4.va.gov/healtheligibility/Library/pubs/CombatVet/CombatVet.pdf.

Decisional Issue 2 (Equity)  The Applicant contends that his honest and meritorious service should be viewed as mitigating factors to his post-injury misconduct, requiring an upgrade to his characterization of service at discharge.  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 the conduct expected of members of the Naval Service.  The Applicant’s record clearly documents his acceptable conduct while deployed in a combat zone; for this service, he received the Iraqi Campaign Medal.  However, the record of service does not document any personal awards received during combat or peacetime service that would constitute service that was so meritorious that it would reverse his act of illegal drug use - which constituted a significant departure from the conduct expected of service members.  After a thorough review of the Applicant’s record of service, the NDRB determined that the Applicant had engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service.  In reviewing the records, supporting documents, facts, and circumstances unique to this case, 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 is consistent with the characterization of discharges given to others in similar circumstances.  An upgrade or change would be inappropriate.  Accordingly, relief as requested, is denied.

Decisional Issue 3 (Propriety)  The Applicant contends that his urinalysis test results were a false positive, and he did not use cocaine, thereby warranting a change in his narrative reason for discharge to Secretarial Authority.  The Applicant contends his discharge was improper due to false results, but he did not provide any documentation to support his contention.  The Naval Drug Screening Laboratory goes through a thorough four-level review to accurately test all specimens.  After the lab receives the specimen via U.S. Mail, UPS, or FedEx, drug lab personnel inspect the boxes, individual bottles, and the originating command’s chain-of-custody form to ensure there are no discrepancies.  The Initial Testing Department performs immunoassay testing (qualitative testing), the goal of which is to obtain a “presumptive” identification of drugs in a sample.  Only one bottle is opened at a time and tested.  If no drug is detected, the service member’s specimen is reported as negative.  If a drug is detected, another sample is poured from the original specimen bottle and tested again by immunoassay (re-screen).  If a drug is not detected, the specimen is reported as negative.  If a drug is again detected, another sample is poured from the original specimen bottle and sent to the Confirmation Department (quantitative testing).  Personnel then test for a drug presence and concentration using Gas Chromatography/Mass Spectrometry.  If the drug result is equal to or greater than the DoD cutoff, the specimen is reported as positive; otherwise, the specimen is reported as negative.  After laboratory certifying officials verify the results by ensuring all procedures have been followed and the results are accurate, the drug lab releases a message to the service member’s command.  All three tests (screen, re-screen, and confirmatory) must be positive before a positive result is reported to the command.  Based on the Naval Drug Lab message and the full documentation report for the laboratory accession in the case of the Applicant’s sample, the NDRB determined the Applicant’s urinalysis was not a false positive.  Relief 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