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

Docket No. MD11-00832

ex-PFC, USMC

Current Discharge and Applicant’s Request

Application Received:  20110209
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)	20031223 - 20040906  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  20040907	Age at Enlistment:  18
Period of Enlistment:  5 Years  1 Month
Date of Discharge:  20090915	Highest Rank:  LANCE CORPORAL
Length of Service:  05  Year(s)  00  Month(s)  09  Day(s)
Education Level:  12	AFQT:  79
MOS:  3531
Proficiency/Conduct Marks (# of occasions):  4.1 (16) / 4.0 (16)	Fitness Reports:  NOT APPLICABLE

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

Periods of UA/CONF:  NONE

NJP:  3

- 20060329:	Article 95 (Fleeing from apprehension)
	Article 128 (Assault – consummated by a battery; inflicting bodily harm to another Marine)
	Awarded: FOP  Suspended:  FOP

- 20060406:	Article 112a (Wrongful Use, Possession, etc of a Controlled Substance – Marijuana: 23 ng/ml, urinalysis dated 20060228)
	Awarded: RIR to E-2/PFC, FOP.   Suspended:  NONE

- 20090430:	Article 112(a) (Wrongful Use, Possession, etc of a Controlled Substance – Marijuana: 28 ng/ml, urinalysis dated 20080821)
	Awarded: RIR to E-2/PFC, FOP, 45 days restriction/45 days extra punishment duties.   Suspended: NONE

SCM:  NONE	SPCM:  NONE	CC:  NONE

Retention Warning Counseling:  2

- 20060329:	For your NJP on 20060329.  You were guilty of Article 95 (Fleeing from apprehension).  The MPs witnessed an assault and when they approached the area yourself and 3 other Marines fled in the vehicle driving at a high rate of speed resulting in the vehicle crashing into a concrete barrier.  This type of conduct is very disturbing, unacceptable and will not be tolerated.  I understand that this incident has brought discredit upon the Marine Corps and is not conducive to good order and discipline, which is the hallmark of our Corps.

- 20060906:	For your misconduct, specifically your wrongful use, possession, etc., of a controlled substance.  On 20060228, a urinalysis was conducted.  Your specimen tested positive on 20060324 at NAVDRUGLAB San Diego CA for THC.  The cutoff value for THC is 15 ng/ml and your specimen has a THC level of 23 ng/ml.  As a result, you received NJP on 20060406 and were found guilty under the UCMJ of violation of Article 112a.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

	Block 13, Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read:  “RIFLE MARKSMAN BADGE, GOOD CONDUCT MEDAL, SEA SERVICE DEPLOYMENT RIBBON (2nd Award), IRAQI CAMPAIGN MEDAL, GLOBAL WAR ON TERRORISM SERVICE MEDAL, NATIONAL DEFENSE SERVICE MEDAL, NAVY UNIT COMMENDATION, MERITORIOUS MAST, LETTER OF APPRECIATION”

The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.

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

Decisional issues:  1. (Equity) The Applicant contends that his service was honorable and, as such, the characterization of service at discharge was inequitable.  2. (Propriety) The Applicant contends that he was retained involuntarily in the service, beyond the expiration of his active service contract, in order to process him for administrative discharge for misconduct.  3.  (Equity) The Applicant contends that assigning him an Under Other Than Honorable Conditions discharge, after the completion of his service, was unjust.  4. (Equity) The Applicant contends that his post-service conduct warrants consideration and justifies an upgrade in the characterization of his service at discharge.

Decision

Date:  20110802	       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 four decisional issues for the NDRB’s consideration.  In reviewing the Applicant’s issues, 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’s enlistment record reflects his entry into military service with a pre-service waiver for illegal use of a controlled substance - marijuana.  He enlisted on an Electronics Maintenance Option guarantee contract for 5 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, as a condition of his waiver to enlistment and induction standards for pre-service illegal drug use.  The Applicant’s service record further documents that he is a combat veteran, having served in the Al-Anbar province of Iraq in support of Operation IRAQI FREEDOM from 07 March to 01 October 2006 and again from 15 August 2007 to 11 April 2008.

The Applicant’s record of service documents that he received two paragraph 6105 retention-counseling warnings and three nonjudicial punishments for violations of the Uniform Code of Military Justice (UCMJ) as follows: Article 95 (Fleeing from apprehension); Article 112(a) (2 separate specifications of wrongful use, possession, etc of a controlled substance – marijuana, 23 ng/ml and 28 ng/ml); and Article 128 (Assault, consummated by a battery).  Based on an Article 112(a) violation, processing for administrative separation from the service is mandatory.  After the first incident of illegal drug use (28 Feb 2006) in violation of Article 112(a) of the UCMJ, the Applicant was processed for administrative separation.  As part of the notification process, the Applicant elected to present his case before an administrative discharge hearing board.  In July 2007, the board recommended the Applicant be retained; the Separation Authority (the General Court Martial Convening Authority) did not challenge the discharge hearing board’s determination and the Applicant was subsequently retained in the service.  On 21 August 2008, the Applicant provided a urine sample for testing as part of a unit sweep urinalysis; this test sample yielded a positive result (28 ng/ml THC) for the presence of marijuana in the Applicant’s system.  The Applicant was processed again for administrative separation from the service.

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 07 April 2009, the Applicant was notified - in writing - of the Command’s intent to process him for administrative separation for Misconduct (Drug Abuse) in accordance with paragraph 6210.5 of the MARCORSEPMAN.  The Applicant was advised further 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 on 07 April 2009, using the administrative board notification procedure, the Applicant acknowledged receipt of the notification and elected to exercise his 

right to consult with a qualified legal counsel; he further elected to submit written matters to the Separation Authority and 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 26 August 2009, the Separation Authority directed that 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.  He further directed that the Applicant receive an RE-4B reentry code (not recommended for reenlistment, in service drug abuse) upon discharge.

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 did provide proof of successfully completing a drug and alcohol treatment center for post-service consideration by the NDRB. 

(Decisional Issues)  (Propriety/Equity)  RELIEF NOT WARRANTED.  1. (Propriety) The Applicant contends that he was retained involuntarily in the service, beyond the expiration of his active service contract, in order to process him for administrative discharge for misconduct.  2.  (Equity) The Applicant contends that his service was honorable and, as such, the characterization of service at discharge was inequitable.  3.  (Equity) The applicant contends that assigning him an Under Other Than Honorable Conditions discharge, after the completion of his service, was unjust.  4. (Equity) The Applicant contends that his post service conduct warrants consideration and justifies an upgrade in the characterization of his service at discharge.    

(Propriety) Issue 1 - The Applicant contends that he was retained involuntarily in the service, beyond the expiration of his active service contract, in order to process him for administrative discharge for Misconduct.  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 did acknowledge the separation process and elected his rights - in writing.  A Naval Drug Lab screening result, which documented the presence of THC in the Applicant’s system, did establish by a preponderance of the evidence that the Applicant had violated Article 112 (a) of the UCMJ.  Processing for administrative separation for the use of illegal drugs is mandatory.  The Applicant was notified of the separation proceedings on 07 April 2009.  He elected his rights and submitted his statement for consideration on 15 April 2009.  The Command submitted its recommendation for separation on 24 July 2009.  The Separation Authority took action on the recommendation for separation on 24 August.  Based on the documentation of record, the NDRB determined that the separation was proper, was completed prior to the Applicant’s expiration of active service date (06 September 2009), and the narrative reason for separation was accurate.  Relief denied.

(Equity) Issues 2 & 3 - The Applicant contends that his service was honorable and, as such, the characterization of service at discharge was inequitable.  The Applicant further contends that assigning him an Under Other Than Honorable Conditions discharge after the expiration of his obligated active service date was unjust.  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 proposed administrative separation in 2007 following the Applicant’s first wrongful use of marijuana in service.  An administrative discharge hearing board recommended that he be retained; the Separation Authority opted to not challenge the Board’s determination and approved the retention.  The Applicant then tested positive again for illegal use of marijuana following his retention in service.  As such, he was processed a second time for Misconduct (Drug Abuse).  The Applicant was properly processed and approved for discharge prior to the expiration of his active service obligation as documented by the Separation Authority’s direction to discharge the Applicant for Misconduct - dated 24 August 2009 - approximately 15 days prior to his EAS.

(Equity) Issue 4 - The Applicant contends that his post-service conduct warrants consideration and justifies an upgrade in the characterization of his service at discharge to Honorable.  The NDRB considers 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.  The Applicant failed to provide any documentation and evidence on his behalf to support a post-service conduct review.  The Applicant’s statements alone, without sufficient documentary evidence, are not enough to form a basis of relief.  The Applicant could have provided evidence as detailed in the Post-Service Conduct paragraph in the Addendum.  However, even if the Applicant could have produced additional evidence to support a review based on his post-service conduct, post-service conduct alone does not guarantee an upgrade.  Relief denied.

NDRB Board Issue: The Applicant is a combat veteran with an in-service diagnosis of Post-Traumatic Stress Disorder (PTSD), received while attending Level III inpatient drug and alcohol treatment (21 May - 01 July 2009).  The NDRB determined that the diagnosis of PTSD was not a mitigating factor for the Applicant’s willful and deliberate misconduct - violation of Article 112 (a), twice.  The Applicant’s misconduct, which formed the primary basis for determining the character of his service at discharge, began prior to his combat service (Feb 2006), and, even after being processed for administrative separation and being retained, continued with illegal drug use.  The Applicant enlisted with an illegal drug use waiver, continued the use of illegal drugs, in violation of the UCMJ and the Marine Corps Policy on illegal drugs, prior to his combat service, and then, after being recommended for separation and retained, used illegal drugs again.  The NDRB determined that this misconduct was not mitigated by his combat service and did reflect a significant departure from that conduct expected of a service member.  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.

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.  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.  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.

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