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

Docket No. MD14-00377

ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20131223
Characterization of Service Received:   
Narrative Reason for Discharge:   
Authority for Discharge:   MARCORSEPMAN 

Applicant’s Request:	Characterization change to: 
	Narrative Reason change to: OTHER

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	19990826 - 19990919  	Active:	

Pre-Service Drug Waiver:  

Period of Service Under Review:
Date of Current Enlistment:  19990920	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20020719	Highest Rank:  
Length of Service:    Year(s)    Month(s)  00  Day(s)
Education Level:  	AFQT:  59
MOS:  3531
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle   

Periods of CONF:  

NJP:  

- 20020313:	Article  (Absence without leave)
	Awarded:    Suspended:  

SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  

- 20010516:	For poor judgment, lack of maturity, and having a lackadaisical attitude toward duty commitments.  You have been counseled informally on numerous occasions about your duties and responsibilities as the Commander’s Driver, but you continued to demonstrate through your specific actions that you do not possess the requisite maturity or professional attitude to conduct yourself in the official capacity of this billet.  Additionally, you have to be consistently reminded of being at your appointed place of duty.  This total disregard of subtle recommendations on your behalf has cast a cloud of uncertainty in your judgment and your abilities to carry out this prestigious duty.  Accordingly, you are being relieved of all duties as the Battalion Commander driver.

- 20020320:	For unauthorized absence, 0515-0630, 20020215.

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 would like to upgrade her RE-Code and become a Marine Corps officer.
2.	The Applicant contends she is innocent of the commission of a serious offense due to the isolated incident on 8 June 2001 being false and untrue.
3.	The Applicant contends her discharge for misconduct due to drug abuse was questionable and unfair when after being awarded immunity from the use of her testimony, the same testimony was used to start her administrative discharge.
4.	The Applicant contends her post-service conduct is worthy of an upgrade.

Decision

Date:  20140710	     	Location: Washington D.C.	 Representation: 

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

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 Board did complete 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 included  6105 counseling warnings and   for  of the Uniform Code of Military Justice (UCMJ): Article  (Absence without leave, ).  The Applicant’s record of service did not document if she had a pre-service drug waiver prior to entering the Marine Corps or acknowledged  complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs.  When notified of administrative separation processing using the  procedure for Misconduct (Drug Abuse) and Misconduct (Serious Offense), the Applicant   rights to consult with a qualified counsel, submit a written statement, and request an administrative board.  The Applicant’s administrative separation board unanimously found the preponderance of the evidence presented supported the narrative reasons for separation (Drug Abuse and Serious Offense) and recommended an Under Other Than Honorable Conditions characterization of service.  The Separation Authority concurred with the findings and ordered the Applicant to be discharged for Misconduct (Drug Abuse) Under Other Than Honorable Conditions.  

:  (Nondecisional)  The Applicant would like to upgrade her RE-Code and become a Marine Corps officer.  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 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 she is innocent of the commission of a serious offense due to the isolated incident on 8 June 2001 being false and untrue.  The record of evidence clearly shows the Applicant chose to avoid trial by court-martial by electing to provide testimony under immunity against a more senior Marine accused of drug use and distribution.  The record also shows the Applicant was provided the opportunity to mount a defense against the charges at her administrative separation board.  The Applicant’s administrative board unanimously found the preponderance of the evidence presented supported the narrative reasons for separation of Drug Abuse and Commission of a Serious Offense.  The evidence submitted by the Applicant fails to support her contention, therefore, the NDRB must rely upon the presumption of regularity in the conduct of Government affairs.  Relief denied.

:  (Decisional) ()  .  The Applicant contends her discharge for misconduct due to drug abuse was questionable and unfair when after being awarded immunity from the use of her testimony, the same testimony was used to start her administrative discharge.  Despite a servicemember’s prior record of service, certain serious offenses warrant separation from the Marine Corps to maintain proper order and discipline.  Violation of the Marine Corps 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.  As part of the Applicant’s agreement to testify at the General Court-Martial of a more senior Marine involved in drug use and distribution, the Applicant’s command granted her immunity concerning the content of her testimony and agreed to drop the charges against her scheduled for a Special Court-Martial.  In referencing the Applicant’s grant of testimonial immunity, it specifically states that her specific testimony or other information given would not be used against her “in any criminal case, except a prosecution for perjury, giving a false statement or otherwise failing to comply with an order to testify.”  The NDRB noted no prohibitions against criminally prosecuting her based on evidence uncovered during the Japanese narcotics control office or NCIS investigations, the testimony of other Marines, the testimony of the accused she was granted immunity to testify against, or her own admissions outside of her court-ordered testimony.

As a result of her agreement to testify, her command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge.  Per the Marine Corps Separation and Retirement Manual, self-admission for drug use constitutes confirmation of illegal drug abuse and requires a Marine to be processed for administrative separation.  The Applicant’s record also shows that her drug abuse was corroborated by witness statements as well as by testimony provided by both NCIS and Japanese special agents during another service member’s General Court-Martial.  Regardless of the Applicant’s current contention that her drug abuse did not occur, was self-disclosed, or any agreement that provided immunity concerning the specific revelations of her testimony, processing for administrative separation was mandatory.  Additionally, the Applicant was notified, in writing, of her command’s intent to administratively process her for separation due to Misconduct (Serious Offense) and Misconduct (Drug Abuse).  She acknowledged this, in writing, and elected her rights to consult with counsel and appear before a board.

During the Applicant’s testimony during her administrative separation board, she stated, “…I don’t recall the amount of time I used ecstasy.  It was more than five times.  All the weekends of February 2001 were spent using ecstasy….  I have used ecstasy on a Marine Corps installation.  Camp Hansen…I took the ecstasy because I wanted to feel good…I had fun doing ecstasy…I take using drugs as a mistake…You’re right I did drugs and I have admitted to it.”  She further stated, “…I got put into a situation where I was hanging out and a high-ranking Marine was offering me drugs, it was my mistake for not walking away.”  Evidence of her involvement with illegal drugs was further documented during Staff Sergeant K____’s General Court-Martial proceedings by the testimony of an NCIS Special Agent and a Japanese agent from the Japanese narcotics control office as well as by the statements of other involved Marines and the Staff Sergeant himself.  In accordance with Secretary of the Navy Instruction 5420.174D of 22 December 2004, relevant and material facts as stated in a court-martial are presumed by the NDRB to be established facts.  Given the depth of testimonial evidence in the Staff Sergeant’s court-martial and her administrative board concerning her involvement with illegal drugs, the testimony provided by the Applicant under immunity was not needed as there was plenty of other testimony to confirm her drug abuse.  The NDRB found the characterization of her discharge was equitable and consistent with the characterization given others in similar circumstances.  Relief denied.

4:  (Decisional) ()  .  The Applicant contends her post-service conduct is worthy of an upgrade.  The NDRB is authorized to consider post-service factors in the re-characterization of a discharge.  However, there is no law, or regulation, that provides that 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 exist during the period of enlistment in question.  Besides the Applicant’s statement on the DD Form 293, she failed to provide any documentary evidence on her behalf for post-service consideration.  The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum with the recognition that completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration.  Without 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 discharge 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.

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