Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: Garcia-Anglin, Nuchy CIV CORB, NDRB
Company: NCPB

Docket No. MD14-00273

ex-PFC, USMC

Current Discharge and Applicant’s Request

Application Received:  20131126
Characterization of Service Received:  (corrected) 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)	20090602 - 20100207  COG	Active:	NONE

Pre-Service Drug Waiver:  YES

Period of Service Under Review:
Date of Current Enlistment:  20100208	Age at Enlistment:  18
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  20110112	Highest Rank:  PRIVATE FIRST CLASS
Length of Service:  00  Year(s)  11  Month(s)  05  Day(s)
Education Level:  12	AFQT:  63
MOS:  8011
Proficiency/Conduct Marks (# of occasions):  4.2 (1) / 4.2 (1)	Fitness Reports:  NOT APPLICABLE

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

Periods of UA/CONF:  NONE

NJP:  1

- 20101201:	Article 92 (Failure to obey order or regulation - wrongfully possessing a designer drug, to wit: “Spice”)
	Awarded: FOP RESTR EPD  Suspended:  NONE

SCM:  NONE	SPCM:  NONE	CC:  NONE

Retention Warning Counseling:  1

- 20101202:	For violation of Article 92.

Administrative Corrections to the Applicant’s DD 214

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

	Block 24, Character of Service, should read: “UNDER OTHER THAN HONORABLE CONDITIONS”

The NDRB will recommend to the Commandant of the Marine Corps, MMSB-13, 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

1.	The Applicant contends military discharge review boards’ decisions concerning look-a-like and drug paraphernalia offenses warrant an upgrade.
2.	The Applicant, whose father is in Federal law enforcement, contends he had an unblemished record of service for 11 months prior to his separation.
3.	The Applicant contends the Medical Officer Evaluation was flawed in identifying the rehab offered based on possession of paraphernalia rather than use or possession of synthetic look-a-like.
4.	The Applicant contends he wanted to be retained in service.
5.	The Applicant contends he had no pre-service drug involvement or casual use.
6.	The Applicant contends his Non-Judicial Punishment (NJP) occurred after he waived counsel.
7.	The Applicant contends there was no testing of the substance to identify its composition.
8.	The Applicant contends exposure to drugs brought on by the mismanagement of his syncope and limitation of duty for his first five months of service mitigate his misconduct.
9.	The Applicant contends a Special Court-Martial was withdrawn, and his NJP only resulted in a forfeiture of pay, restriction, and extra duty.
Decision

Date:  20140605	DOCUMENTARY REVIEW	Location: Washington D.C.	 Representation: Civilian Counsel

By a vote of 5-0 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS.
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT.

Discussion

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’s record of service included one 6105 counseling warning and one nonjudicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation - wrongfully possessing a designer drug, to wit: “Spice”).  The Applicant also had a pre-service drug waiver for using marijuana five times prior to entering the Marine Corps, and acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 27 May 2009.  Based on the drug policy violation, processing for administrative separation is mandatory.  When notified of administrative separation processing using the administrative board procedure, the Applicant waived his rights to consult with a qualified counsel, submit a written statement, and request an administrative board.

Issue 1:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends military discharge review boards’ decisions concerning look-a-like and drug paraphernalia offenses warrant an upgrade.  The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis, and does not use prior military discharge review board decisions to determine if relief is warranted.  If a review of an individual case 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.  A preponderance of the evidence reviewed supports the conclusion that the Applicant violated the Marine Corps drug policy, that separation from the Naval Service was appropriate, and that an Under Other Than Honorable Conditions discharge was warranted.  Relief denied.

Issue 2:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant, whose father is in Federal law enforcement, contends he had an unblemished record of service for 11 months prior to his separation.  Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Marine Corps to maintain proper order and discipline.  Violation of the Marine Corps zero-tolerance drug policy is one such offense requiring mandatory processing for administrative separation regardless of grade, performance, or time in service.  This 

usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial.  However, his command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge.  The NDRB found the characterization of his discharge was equitable and consistent with the characterization given others in similar circumstances.  Relief denied.

The Applicant contends he was awarded a Good Conduct Medal.  This is incorrect.  A Good Conduct Medal is awarded after three years of honorable, misconduct-free service.  The confusion likely arose from Block 18 on his DD Form 214, which reset the three-year counter after his NJP on 1 December 2010.

Issue 3:  (Decisional) (Propriety)  RELIEF NOT WARRANTED.  The Applicant contends the Medical Officer Evaluation was flawed in identifying the rehab offered based on possession of paraphernalia rather than use or possession of synthetic look-a-like.  The NDRB determined this error in identifying why he was evaluated for substance abuse treatment was administrative in nature and does not affect the propriety of the discharge.  The Applicant was found in possession of Spice, was found guilty at NJP of violating UCMJ Article 92 (Failure to obey order or regulation), and was properly separated.  Relief denied.

Issue 4:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends he wanted to be retained in service.  The Separation Authority (Commanding General, Training Command) reviewed the Applicant’s desire to remain in service and considered this in determining that he was no longer fit to serve as a result of his violation of the Marine Corps drug policy.  The NDRB determined relief is not warranted based on his desire to remain in service.  Relief denied.

Issue 5:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends he had no pre-service drug involvement or casual use.  The Applicant received a pre-service drug-use waiver to join the Marine Corps.  Whether or not he used drugs pre-service, he still warranted separation for in-service possession of a substance that was prohibited by regulations.  Relief denied.

Issue 6:  (Decisional) (Propriety)  RELIEF NOT WARRANTED.  The Applicant contends his NJP occurred after he waived counsel.  The NDRB determined the Applicant was provided full due process before, during, and after his NJP.  The Applicant was offered the right to consult with counsel before his NJP, and he voluntarily waived that right.  Relief denied.

Issue 7:  (Decisional) (Propriety)  RELIEF NOT WARRANTED.  The Applicant contends there was no testing of the substance to identify its composition.  To be found guilty at NJP, a commanding officer only needs to find that a preponderance of the evidence supported that an offense occurred.  The Applicant admitted, in writing, on 24 November 2010 that he had Spice in his backpack in his wall locker in his barracks room, and the Spice was for his personal use.  This self-admission provided the preponderance of the evidence that he violated regulations prohibiting the possession of a substance with the intention of getting high.  Testing of the substance was not needed nor required.  Relief denied.

Issue 8:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends exposure to drugs brought on by the mismanagement of his syncope and limitation of duty for his first five months of service mitigate his misconduct.  The NDRB determined his misconduct was not mitigated by exposure to drugs brought on by the mismanagement of his syncope or mitigated by any limited duty.  There is nothing in the records to show that he was either not responsible for his conduct or should not be held accountable for his actions.  Relief denied.

Issue 9:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends a Special Court-Martial was withdrawn, and his NJP only resulted in a forfeiture of pay, restriction, and extra duty.  The Applicant was fortunate in that his command withdrew charges for a Special Court-Martial, which could have resulted in a punitive Bad Conduct Discharge, confinement, a fine, and reduction in rank to E-1.  The decision to handle the Applicant’s misconduct administratively rather than legally, however, does not imply that his misconduct was not serious or deserves a more favorable characterization of service.  After his finding of guilt at NJP for violation of the drug policy, he was subject to mandatory processing for administrative separation per Marine Corps regulations.  He was afforded all rights during this process, and he waived all of those rights.  His Under Other Than Honorable Conditions characterization was completely in line with what others received for similar misconduct and lengths of service.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries and discharge 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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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 	RESTR - Restriction	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	CBW - 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