ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20140320
Characterization of Service Received:   
Narrative Reason for Discharge:   
Authority for Discharge:   MARCORSEPMAN 

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

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	20050816 - 20051023  	Active:	

Pre-Service Drug Waiver:  

Period of Service Under Review:
Date of Current Enlistment:  20051024	Age at Enlistment:  
Period of Enlistment:   Years  7 Months extended at the COG
Date of Discharge:  20100226	Highest Rank:  
Length of Service:    Year(s)    Month(s)  03  Day(s)
Education Level:  	AFQT:  54
MOS:  1345
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle  (2)      SSDR LoA (2) MM (2) CoC CoA

Periods of UA/CONF:  

NJP:  

- 20091014:	Article  (Wrongful use, possession, etc. of controlled substances, cocaine 242 ng/mL)
	Awarded:    Suspended:   

SCM:  	SPCM:  	CIVIL ARREST:  

Retention Warning Counseling:  3

- 20091014:	For the following deficiencies in your performance and conduct.  You received Bn level NJP for Article 112a on 20091014.  Specifically, you tested positive on a urinalysis test for 242 ng/ml of Cocaine.

- 20091026:	For my illegal drug involvement.  Cocaine usage identified through urinalysis confirmed by Navy Drug LAB San Diego msg F01429840 Sept 21.

- 20091112:	For PTSD.

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 wants a change to his reentry (RE) code to reenlist.
2.	The Applicant contends his discharge was too harsh for a one time incident of misconduct.
3.	The Applicant contends his counsel noted irregularities in the Administrative Separation Board.
4.	The Applicant contends his post-service conduct warrants consideration for an upgrade.
5.	The Applicant contends his service record warrants consideration for an upgrade.

Decision

Date:  20140814	     	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  (Wrongful use, possession, etc. of controlled substances, cocaine).  The Applicant  a pre-service drug waiver for using marijuana  prior to entering the Marine Corps,  acknowledged  complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 15 August 2005.  Based on the Article 112a violation, processing for administrative separation is mandatory.  When notified of administrative separation processing using the  procedure, the Applicant   rights to consult with a qualified counsel, submit a written statement, and request an administrative board.  On 14 December 2009, an Administrative Separation Board determined that a preponderance of the evidence supported drug abuse and recommended the Applicant be separated from the Marine Corps Under Other Than Honorable Conditions, but that the separation be suspended.  The Separation Authority did not concur with the recommended suspension and ordered the Applicant to be discharged Under Other Than Honorable Conditions on 26 February 2010.

:  (Nondecisional)  The Applicant wants a change to his reentry (RE) code to reenlist.  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 his discharge was too harsh for a one time incident of misconduct.  Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the  to maintain proper order and discipline.  Violation of Article 112a is one such offense requiring mandatory processing for administrative separation regardless of grade, performance, deployments, awards, 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 the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances.  Relief denied.

:  (Decisional) ()  .  The Applicant contends his counsel noted irregularities in the Administrative Separation Board.  Following the Applicant’s Administrative Separation Board, his counsel submitted a Letter of Deficiency to the Separation Authority with regard to issues of irregularity for consideration in the decision to retain the Applicant in service or to discharge him.  The Separation Authority, and his Judge Advocate General, considered the board’s recommendations and the Letter of Deficiency before deciding the Applicant should be discharged for Misconduct (Drug Abuse) without suspension of the discharge.  The NDRB discerned no impropriety in the Applicant’s administrative separation process and further determined an upgrade is not warranted.  Relief denied.

4:  (Decisional) ()  .  The Applicant contends his post-service conduct warrants consideration for 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, he failed to provide any documentary evidence on his 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.

5:  (Decisional) ()  .  The Applicant contends his service record warrants consideration for an upgrade.  The Applicant served in active service in the Marine Corps for four years and four months.  The Applicant deployed to Kuwait and Iraq from November 2007 until June 2008 in support of combat operations for Operation IRAQI FREEDOM.  While serving in the Marine Corps, the Applicant was awarded a Navy and Marine Corps Achievement Medal, Good Conduct Medal, two Meritorious Masts, a Certificate of Commendation, a Certificate of Appreciation, and a Letter of Appreciation.  The Applicant was meritoriously promoted to Lance Corporal and promoted to Corporal.  The Applicant voluntarily extended past his original completion of required active service date of October 2009 to complete a deployment at sea with his unit.  The Applicant had no other instances of recorded misconduct or negative aspects of performance or conduct until his positive urinalysis for cocaine.  Although the NDRB recognizes the Applicant’s otherwise honorable character of service in the Marine Corps, drug abuse is a serious offense that often results in a punitive Bad Conduct Discharge or an Under Other Than Honorable Conditions discharge.  After a thorough review of the records and the circumstances surrounding the drug use, the NDRB determined partial relief with an upgrade to General (Under Honorable Conditions) is warranted.  However, the narrative reason shall remain Misconduct.  Partial relief granted.  Full relief to Honorable and a narrative change to Administrative was not granted because of the serious nature of the misconduct and because he was properly discharged for Misconduct (Drug Abuse).

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   but 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