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

Docket No. MD11-01476

ex-Pvt, USMC

Current Discharge and Applicant’s Request

Application Received:  20110524
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 OR GENERAL (UNDER HONORABLE CONDITIONS)
	Narrative Reason change to: NONE REQUESTED

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	20071117 - 20080727  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  20080728	Age at Enlistment:  19
Period of Enlistment:  5 Years  0 Months
Date of Discharge:  20100430	Highest Rank:  LANCE CORPORAL
Length of Service:  01  Year(s)  09  Month(s)  03  Day(s)
Education Level:  12	AFQT:  93
MOS:  6154
Proficiency/Conduct Marks (# of occasions):  4.3 (5) / 4.2 (5)	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	Rifle EX (2) GWOTSM NDSM LoA

Periods of UA/CONF:  20100222 - 20100301 (8 days)

NJP:  NONE	SPCM:  NONE	CC:  NONE

SCM:  1

- 20100222:	Article 92 (Disobey a lawful order, wrongfully using spice)
	Sentence: RIR (to E-1) CONF (10 days) RESTR 

Retention Warning Counseling:  4

- 20091006:	For violations of Article 92 of the UCMJ by exceeding posted speed limit on 20090904.  In addition, on 20090930 I received a citation for using a cell phone while operating a motor vehicle.  On both occasions I failed to notify my command.

- 20091007:	For violation of Article 86 of the UCMJ by being ten minutes late for formations on 20091006.

- 20100318:	For violation of Article 92, Failure to obey an order or regulation.  Specification: at an unknown location, between on or about 13 Jan 2010 to on or about 16 Feb 2010, violate a lawful general order, MARFORPACO 5355.2, dated 1 Dec 2009, by wrongfully using Spice.  

- 20100406:	For violation of Art 92, Failure to obey order or regulation.  Specification: at or around barracks 2408 parking lot located on MCB Camp Pendleton CA, o/o 17 Mar 2010, violate Paragraph 3(b), MARFORPACO 5355.2 dated 1 Dec 2009, by wrongfully using Spice.

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.	Applicant seeks a discharge upgrade to increase employment opportunities.  
2.	Applicant contends his discharge was improper/inequitable in that his isolated misconduct was not as wrongful as others.
3.	Applicant contends his post-service achievements warrant consideration for a discharge upgrade.

Decision

Date:  20120315	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 Board 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 two decisional issues for the Board’s consideration.  The Board completed a thorough review of the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included four 6105 counseling retention warnings and one summary court-martial (SCM) for violation of the UCMJ: Article 92 (Failure to obey an order or regulation, MARFORPAC Order 5355.2, by illegally using SPICE between on or about 13 Jan 2010 to on or about 16 Feb 2010).  The Applicant also had a pre-service waiver for illegal use of marijuana (one time) and 3rd degree retail fraud (unarmed robbery, reduced to retail fraud for stealing a phone) prior to entering the Marine Corps.  During enlistment accession processing, he acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 19 Oct 2007.  Based on the violation of the Marine Corps Policy on drugs, processing for administrative separation is mandatory.  When notified of administrative separation processing using the administrative board procedure on 7 Apr 2010, the Applicant exercised his right to consult with a qualified counsel, but waived his rights to submit a written statement and request an administrative separation board (Admin Board waiver was a result of the Applicant’s 18 Feb 2010 approved request for “fast track disposition” of UCMJ Article 92 violations via Summary Court-Martial and a subsequent administrative separation in lieu of preferring charges for trial by Special Court-Martial).  The Summary Court-Martial proceedings were conducted on 22 Feb 10 and the Applicant pled and was found guilty of violating UMCJ Article 92.  On 8 Apr 2010, the Commanding Officer, Marine Aircraft Group 39 (MAG-39) endorsed the Applicant’s administrative separation package stating, “The respondent has multiple incidents of personal misconduct, to include two instances of Spice usage, one incident of unauthorized absence, and a minor motor vehicle infraction.  He pled guilty to Spice usage at Summary Court-Martial.  I concur with the squadron commander’s recommendation that the respondent be separated under other than honorable conditions.”  

On 13 Apr 1020, the Applicant submitted a written statement of rebuttal in response to the (6 Apr 2010) 6105 retention warning he received for violation of MARFORPAC Order 5355.2 and UCMJ Art 92.  His rebuttal stated, “…I believe this allegation was erroneous.  While I was in possession of the alleged substance, I did not use it.  The substance was found in my vehicle the day after I came off restriction and confinement.  It was left over from a previous incident in Feb 2010.  I was returning to my barracks from off-base in my vehicle.  I agreed to call my wife after I parked my vehicle, but told her that I would only talk to her along the walk to my barracks room.  In order to extend the call, I parked in the fourth tier parking lot.  I used a cigarette lighter as a source of light to search for my phone.  While searching, I found my glass pipe hidden in my vehicle.  I put the pipe in my pocket with the intent of throwing it away.  After gathering the rest of my belongings, PMO pulled a vehicle behind my vehicle.  They approached me and asked if there was any contraband.  I admitted that I did, and surrendered the pipe.  They then asked if there was any contraband in my vehicle, to which I replied that I did not.  I watched from the back of the PMO vehicle as PMO searched my vehicle for about 30 mins, and procured a bag of leafy substance from a compartment next to my steering wheel that I had forgotten about.  This substance was later identified as Spice.  In the PMO/CID report, the agents stated that they had been observing me, while in my vehicle, from an unmarked vehicle parked directly to the left of me.  They stated that they saw me pull out my pipe, place some leafy substance into the pipe, then apply open flame.  If this statement was 

true, they would have known the location of the leafy substance.  From where the vehicle was parked, they would have had a clear view of the interior of my vehicle and seen I placed the bag in the compartment left of my steering wheel, level with my window.  It would not have taken 30 minutes to locate it.  While I was detained, an agent asked if I wanted to know why I was flagged.  He told me that another agent across the parking lot observed the open flame in my vehicle, and that I did not immediately leave the vehicle.  Although he mentioned the unmarked vehicle adjacent to me, he did not mention surveillance from the unmarked vehicle.  I know the statements made by the two agents were falsified and did not accurately reflect the events that occurred on the night in question.  Since these allegations were not referred to a punitive proceeding, this rebuttal is my only chance to make a defense for myself.  I admit that I had possession of the items in question, but only because I did not have access to my vehicle to discard them since my initial restraint.  I had forgotten about the items during my month of confinement and restriction.  I did not consume any of the substance that day, and I fully intended to discard the pipe on the way to my room.  If I would have found the leafy substance, I would have been on the way to discard it along with the pipe.”  After considering all the facts and circumstances surrounding the Applicant’s case, the Separation Authority directed that the Applicant be discharged from the Marine Corps with an Under Other Than Honorable Conditions discharge due to Misconduct (Pattern of Misconduct and Drug Abuse) with drug abuse being the primary basis.  The Applicant was discharged on 30 Apr 10.

Issue 1: (Nondecisional) The Applicant seeks a discharge upgrade to increase employment opportunities.  The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

Issue 2:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends his isolated misconduct was not as wrongful as others.  The Applicant inferred that his punishment was too severe for the misconduct he committed and that others who smoked Spice were not punished as harshly.  Despite a service member’s record of service, certain serious offenses warrant separation from the Naval Service in order to maintain good order and discipline; violations of Article 92 (relating to substance abuse) meet this standard.  The Applicant signed the USMC Drug Policy on 19 Oct 2007.  Additionally, he received an enlistment waiver for previous illegal marijuana use he committed prior to enlisting into the Marine Corps.  He was fully aware there is a zero-tolerance policy for drug abuse, and he acknowledged the consequences.  While he may feel his misconduct was not as serious in nature as misconduct committed by other service members, the record clearly reflects his misconduct was willful and demonstrated he was unfit for further service.  The evidence of record does not demonstrate the Applicant was not responsible for his conduct or he should not be held accountable for his actions.  Also, 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 standards of discipline of the Naval Service.  Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Marine Corps.  An Under Other Than Honorable Conditions discharge is warranted when a Marine commits or omits an act that constitutes a significant departure from the conduct expected from a member of the Naval Service.  The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of conduct expected of all Marines, regardless of his grade or length of service, and falls far short of what is required for an upgrade in the characterization of service.  Relief denied.

Issue 3:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends his post-service achievements warrant consideration for a discharge upgrade.  The NDRB considers post-service conduct in order to determine if the misconduct committed during active duty was indicative of the Applicant’s character or an aberration.  However, there is no law or regulation that provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  The Applicant provided a personal statement, character reference letters, college transcripts, and certificates of achievement as evidence of post-service accomplishments.  Although his efforts to improve his life are noteworthy, he failed to provide adequate documentation and evidence on his behalf to support a thorough post-service conduct review.  He could have submitted documentation as specified in the Post-Service Conduct paragraph in the Addendum, however, completion of these items alone however, does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis.  Without any additional post-service documentary evidence, the Board determined the awarded characterization of service shall remain Under Other Than Honorable Conditions.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries and the administrative separation process, the Board found 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 for additional information. 

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