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

Docket No. MD11-00725

ex-PFC, USMC

Current Discharge and Applicant’s Request

Application Received:  20110125
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)	20021118 - 20030316  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  20030317	Age at Enlistment:  22
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  20050617	Highest Rank:  LANCE CORPORAL
Length of Service:  02  Year(s)  03  Month(s)  01  Day(s)
Education Level:  12	AFQT:  88
MOS:  0311 (Infantryman) 
Proficiency/Conduct Marks (# of occasions):  2.6 (1) / 2.4 (1)	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	Rifle MM CAR (Iraq) GWOTSM SSDR GWOTEM (Iraq) NDSM

Periods of UA/CONF:  NONE

NJP:  1

- 20050411:	Article 112a (Wrongful use of controlled substance), 2 specifications
	Specification 1: Cocaine on 20041019
	Specification 2: Cocaine on 20041203  
	Awarded: RIR FOP RESTR  Suspended:  NONE

SCM:  NONE

SPCM:  Two specifications of violation of Article 112 (a) of the UCMJ (Wrongful use, possession, etc. of controlled substances) charges preferred on 24 Jan 2005 and subsequently referred for trial by Special Court-Martial.  Charges were withdrawn and were adjudicated at Nonjudicial Punishment on 11 April 2005.  See NJP above.  

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

1.	Nondecisional issues: The Applicant seeks an upgrade in the characterization of his service at discharge in order to gain access to Department of Veterans Affairs (VA) benefits and to facilitate better employment opportunities.  
 
2.	Decisional issues:  The Applicant contends that his discharge characterization of service was inequitable; he served honorably in combat in a leadership position and when he sought help, he was not treated fairly or honorably.

Decision

Date:  20110602	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.  In reviewing the Applicant’s issue, 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 equity and propriety.

The Applicant enlisted on an Infantry Option guarantee contract for 4 years of active duty military service.  The Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning the Illegal Use of Drugs, in writing, on 16 November 2002 as a condition of his enlistment, attesting that he had no undisclosed pre-service drug use or involvement.  The Applicant’s service record documents that he is a combat veteran, having served honorably in the Al-Anbar province of Iraq in support of Operation IRAQI FREEDOM from March to October 2004.  The Applicant received the Combat Action Ribbon for his individual actions while participating in direct combat operations as an infantryman from 30 March 2004 to 16 April 2004 with Task Force 2/2 in Al-Anbar, Iraq.  The Applicant’s record of service included no paragraph 6105 retention-counseling warnings but does contain one nonjudicial punishment for violation of the Uniform Code of Military Justice (UCMJ): Article 112(a) (2 separate specifications of wrongful use, possession, etc of a controlled substance – cocaine, 358 ng/ml and cocaine 2,596 ng/ml).  Based on the Article 112(a) violation, processing for administrative separation from the service was mandatory.  The NDRB reviewed the Applicant’s administrative separation package to ensure he was afforded all rights, as required by the Marine Corps Separation and Retirement Manual (MARCORSEPMAN).  On 14 April 2005, 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 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.  When notified of administrative separation processing using the administrative board notification procedure, the Applicant exercised his right to consult with a qualified legal counsel, but did not elect to submit written matters to the Separation Authority and also chose to waive his right to request an administrative board hearing.  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 for an Under Other Than Honorable Conditions characterization of service and concurred with their recommendation.  On 15 June 2005, the Separation Authority directed the Applicant be discharged with an Under Other Than Honorable Conditions characterization of service by reason of Misconduct (Drug Abuse) pursuant to paragraph 6210.5 of the MARCORSEPMAN and directed that the Applicant receive an RE-4B reentry code (not recommended for reenlistment, in service drug abuse).

The Applicant provided no additional documentation that was not already contained in his service records for the NDRB’s consideration or to rebut any presumption of regularity by the NDRB; the Applicant provided letters of character reference from family and employers, college transcripts, and certificate of membership in the National Honor Society for post-service consideration by the NDRB.

(Nondecisional Issues)  The Applicant seeks an upgrade in the characterization of his service at discharge in order to gain access to Department of Veterans Affairs (VA) benefits and to facilitate better employment opportunities.  There is no requirement, or law, that grants re-characterization based solely on the issue of facilitating employment opportunities.  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 providing access to VA benefits.  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 was inequitable as he served honorably in combat in a leadership position and when he sought help, he was not treated fairly.

Propriety - The NDRB conducted 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 equity and propriety.  The Applicant was recommended for administrative separation in accordance with paragraph 6210.5 of the MARCORSEPMAN - Misconduct (Drug Abuse).  The Applicant was represented by civilian legal counsel and was properly notified of the proposed separation processing; he acknowledged the separation process and elected his rights - in writing.  Two separate naval drug lab screening results, which documented the presence of cocaine in the Applicant’s system, established by a preponderance of the 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.  A change in narrative reason for separation would be inappropriate.  No relief 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.  Violation of Article 112(a) is one such offense requiring mandatory processing for administrative separation, regardless of grade, combat experience, or time in service.  This action usually results in an unfavorable characterization of 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 command originally preferred special court-martial charges against the Applicant.  Though the official record of service does not reflect any pre-trial agreement, the Command withdrew the charges from trial and instead adjudicated the misconduct at the more lenient non-judicial punishment and administrative discharge process.  The Applicant did not contest the separation action and waived his right to defend himself at an administrative separation board.  The Applicant contends that in seeking help for depression and possible Post-Traumatic Stress, he was mistreated and isolated, which was the genesis for his misconduct and is a mitigating factor that was not considered.  The Applicant was deployed in combat actions from 02 March 2004 until his return to Camp Lejeune on 01 October 2004.  The Applicant’s urine sample from a unit urinalysis was confirmed positive for cocaine (358 ng/ml – the DOD test cutoff value is 100 ng/ml).  The test sample was received by the Naval Drug Lab, Jacksonville, Florida on 21 Oct 2004 – 20 days after his return from theater.  The Applicant tested positive again for cocaine (2,576 ng/ml) on a urinalysis test from 13 December 2004 – the Naval Drug Lab received the sample on 07 Dec 2004.  The Applicant first sought a referral for mental health evaluation and counseling for depression with possible PTSD on 06 Dec 2004.  He was evaluated and then treated for PTSD symptoms from 06 Dec 2004 until his discharge.  In the Applicant’s evaluation by the Division Psychologist, he stated that his drug use was only an occasional social use at parties out in town.  Though diagnosed in-service with PTSD, the NDRB determined that the Applicant’s PTSD was not a mitigating factor associated with his 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 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.  The NDRB determined that the in-service diagnosis of PTSD was not a mitigating factor for the willful and deliberate violations of Article 112 (a).  The Applicant’s conduct, which forms the primary basis for determining the character of service, reflected a significant departure from that conduct expected of a service member by one or more acts or omissions; as such, the awarded characterization, as issued, was appropriate, was equitable, and was consistent with the characterization of discharge given others in similar circumstances.  Accordingly, relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service and medical record entries, and 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