ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20110818
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MARCORSEPMAN 

Applicant’s Request:	Characterization change to: 
	Narrative Reason change to: CONVENIENCE OF THE GOVERNMENT

Summary of Service
Prior Service:
Inactive:	USMCR (DEP)	19861030 - 19870628  	Active:		19870629 - 19910509  
				USMC	19910510 - 19960104  

Period of Service Under Review:
Date of Current Enlistment:  19960105	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  19970812	Highest Rank:  
Length of Service:    Year(s)    Month(s)  08  Day(s)
Education Level:  	AFQT:  58
MOS:  0313 / 8411 / 1371
Fitness Reports:  

Awards and Decorations (per DD 214):	 (3) LoA (3)  (3)  JMUA   CoC  (3)   MCEM

NJP:  

- 19970522:	Article  (Wrongful use of a controlled substance, cocaine, b/w 19970220-19970227)
	Awarded:  (to E-4)   (60 days)   Suspended:  

SCM:  	SPCM:  	CC:  	Retention Warning Counseling:  

Administrative Corrections to the Applicant’s DD 214

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

	  “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 870629 UNTIL 960104”

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:	

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1.	Applicant seeks an upgrade to obtain veterans benefits and also seeks changes to his re-enlistment and separation codes.
2.	Applicant contends his discharge was improper due to his command First Sergeant’s personal issues with the Applicant. 
3.	Applicant contends his discharge was improper/inequitable based on double jeopardy for his misconduct.
4.	Applicant contends his discharge was improper/inequitable, because it was based on an isolated incident.
5.	Applicant contends Post-Traumatic Stress Disorder (PTSD) mitigates the misconduct for which he was discharged.
6.	Applicant contends his post-service achievements warrant consideration for a discharge upgrade. 

Decision

Date:  20120308		Location: Washington D.C.	 Representation: 

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  .

Discussion

The Applicant contends he suffers from PTSD.  The Applicant deployed in support of a contingency operation to Somalia in January 1993 and was awarded the Combat Action Ribbon.  In accordance with U.S. Code, Title X, Section 1553 (d)(1), the Naval Discharge Review 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 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 five decisional issues for the Board’s consideration.  The Board completed a thorough review of the circumstances that led to  discharge and the discharge process to ensure  discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service did not reflect any 6105 counseling retention warnings, but it did include   for  of the Uniform Code of Military Justice (UCMJ): Article 112a (Wrongful use, possession, etc of a controlled substance, cocaine, between 20-27 Feb 1997, as evidenced by NAVDRUGLAB msg 142357Z Mar 97).  The record also revealed the Applicant had a pre-service drug waiver during his initial enlistment accession processing for using marijuana five times prior to entering the Marine Corps, and he acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 26 Oct 1986.  Based on the Article 112a offense committed by the Applicant, his command referred him for trial by court-martial.  However, the charge was subsequently withdrawn and then adjudicated at Commanding Officer NJP.  The Applicant’s command then processed him for administrative separation, which is mandatory per the Marine Corps Separation and Retirement Manual (MARCORSEPMAN).  When notified of administrative separation processing using the  procedure on 3 Jun 1997, 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.  On 9 Jun 1997, the 3d Light Armored Reconnaissance (LAR) Battalion, Company C First Sergeant submitted a character witness statement for the Applicant’s administrative separation package, which stated, “I recommend (the Applicant) for administrative discharge from the Marine Corps due to his use/abuse of illegal drugs, specifically cocaine.  (The Applicant), by his use of illegal drugs has demonstrated that he cannot be depended on to carry out the responsibilities of a Noncommissioned Officer by setting the proper example for Marines in his charge, and that he cannot be trusted with the lives of and welfare of others.  Since joining this organization (the Applicant’s) integrity and motivation to do the right thing has been a constant question to myself in my attempts to help him with personal problems he was experiencing.  His displays of reluctance bordering at times on belligerence were telltale indicators to me that he was not fully committed to upholding the trust and confidence bestowed upon him to be a trusted leader of Marines.  Due to the seriousness of the offense committed by (the Applicant), I recommend an Under Other Than Honorable Discharge.”  Also on 9 Jun 1997, the Applicant’s Company Commander wrote, “I recommend administrative discharge from the Marine Corps due to the fact he has broken both military and civilian law by choosing to use illegal drugs (cocaine).  In doing so he has displayed a total lack of self-control and a complete disregard for laws that we are obligated to adhere to.  (The Applicant) has 

demonstrated to myself and the Marines of 1st Platoon that he has absolutely no integrity.  As a Sergeant, (the Applicant) often counseled Marines on our Core Values of Honor, Courage, and Commitment; at the same time he was living a lifestyle contrary to the values he was attempting to instill in those Marines.”  The Applicant was separated from the Marine Corps on 12 Aug 1997 with an Under Other Than Honorable Conditions discharge due to Misconduct (Drug Abuse).

:  (Nondecisional) The Applicant seeks a discharge upgrade to obtain veterans benefits and also seeks changes to his re-enlistment and separation codes.  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.  Additionally, 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.  Also, 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 Board for Correction of Naval Records can make changes to reenlistment and separation 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.

:  (Decisional) ()  .  The Applicant contends his discharge was improper due to his command First Sergeant’s personal issues with the Applicant.  The NDRB is not an investigative body, and allegations of command legal or administrative impropriety should be made to the Naval Inspector General’s Office.  Allegations notwithstanding, the NDRB conducted a thorough review of the Applicant’s discharge to ensure  discharge met the pertinent standards of equity and propriety.  After careful analysis of all the available records, the Board found no evidence to support the Applicant’s claim of impropriety.  Accordingly, without any evidence in the records or evidence submitted by the Applicant to rebut or question the presumption of regularity, the Board determined this issue to be without merit and did not provide a basis for which relief could be granted.  Relief denied.

:  (Decisional) ()  .  The Applicant contends his discharge was improper/inequitable based on double jeopardy for his misconduct.  Approximately one month after the Applicant checked into 3d LAR Battalion, he participated in a command urinalysis test that resulted in him testing positive for cocaine (NAVDRUGLAB msg 142357Z Mar 97).  Based on the Applicant’s violation of UCMJ Article 112a (for using cocaine), his command referred him for trial by special court-martial.  However, after consultation with counsel, he entered into a pre-trial agreement (PTA) with the court-martial convening authority in which he agreed to plead guilty to illegal drug use (via summary court-martial or NJP proceedings) in exchange for withdrawal of the special court-martial charge against him, thereby avoiding a possible felony conviction and a punitive discharge (i.e., Bad Conduct Discharge).  After approval of the PTA, the special court-martial charge was dropped, and the Applicant’s offense was subsequently adjudicated at Commanding Officer NJP.  After completion of NJP, the Applicant’s command processed him for administrative separation, which is mandatory per the MARCORSEPMAN.  When notified of administrative separation processing using the  procedure on 3 Jun 1997, 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 (the Applicant’s right to an Admin Board was waived due to the PTA that avoided trial by special court-martial).  Administrative discharge processing is a separate and distinct process from punitive proceedings such as NJP or court-martial.  Furthermore, administrative discharge processing is administrative in nature and not considered a form of punishment.  Since UCMJ Article 112a violations require mandatory administrative separation processing per the MARCORSEPMAN regardless of command adjudication (i.e., NJP), the Applicant did not receive unfair treatment or double jeopardy.  Accordingly, the NDRB determined this issue to be without merit and did not provide a basis for which relief could be granted. Relief denied.

Issue 4:  (Decisional) ()  .  The Applicant contends his discharge was improper/inequitable, because it was based on an isolated incident.  Despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Marine Corps to maintain good order and discipline; violation of Article 112a meets this standard.  The Applicant received a waiver for illegal use of marijuana five times and signed the USMC Drug Policy on 26 Oct 1986.  He was fully aware there is a zero-tolerance policy for drug abuse, and he acknowledged the consequences.  While he may feel that personal issues or stress was the underlying causes of his misconduct, the record clearly reflects his willful misconduct 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.  A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweigh the positive aspects of the member’s service record.  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 Marine.  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, especially considering his rank of Sergeant, extensive experience, and length of service, and falls short of what is required for an upgrade in the characterization of service.  Relief denied.

Issue 5:  (Decisional) ()  .  The Applicant contends PTSD mitigates the misconduct for which he was discharged.  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 found no medical diagnosis in the record to support the Applicant’s claim nor did the Applicant produce any medical diagnosis by competent medical authority to support his claim.  While he may feel that this was the underlying cause of his misconduct, the record reflects his misconduct was willful and demonstrated he was unfit for further service.  Moreover, the evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Additionally, there is no evidence in the record, nor did the Applicant provide any evidence, to indicate he attempted to utilize the numerous services available for service members who undergo personal problems during their enlistments such as the Navy Chaplain, Medical or Mental Health professionals, Navy Relief Society, Family Advocacy Programs, or even the Red Cross.  The NDRB recognizes that serving in the U.S. Marine Corps is challenging.  However, all members of the Naval Services are expected to uphold the high standards of conduct as evidenced in our Core Values of Honor, Courage, and Commitment, regardless of the environment or mission in which assigned.  After a thorough review of the records, supporting documents, and the facts and circumstances unique to this case, the NDRB found no evidence to support the Applicant’s claim.  Accordingly, the Board determined this issue did not provide a basis for which relief could be granted.  Relief denied.  

Issue 6:  (Decisional) ()  .  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.  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.  The Applicant provided personal statements, reference and character letters, and an employer letter as evidence of post-service accomplishments.  Although his efforts to improve his life are noteworthy, his efforts need to be more encompassing.  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,  record entries and the administrative separation process, the Board found   Therefore, the awarded characterization of service shall   and the narrative reason for separation shall remain .  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of  discharge.  The Applicant is directed to the Addendum for additional information.

Pertinent Regulation/Law

A.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 
31 January 1997 until 31 August 2001.

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.

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