Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: Sanabria, Armando M CIV SECNAVCORB, CORB
Company: NCPB

Docket No. MD15-00764

ex-Pvt, USMC

Current Discharge and Applicant’s Request

Application Received:  20150227
Characterization of Service Received:  (per DD 214) UNCHARACTERIZED
Narrative Reason for Discharge:  (corrected) FRAUDULENT ENTRY (DRUG ABUSE)
Reenlistment Code:  RE-3F
Authority for Discharge:  (per DD 214) MARCORSEPMAN 6204.3 [FRAUDULENT ENTRY INTO MILITARY SERVICE]

Applicant’s Request:	Characterization change to: HONORABLE
	Narrative Reason change to: CONVENIENCE OF THE GOVERNMENT
	Reentry Code change to:  RE-1A

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	20070703 - 20070708  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  20070709	Age at Enlistment:  21
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  20070831	Highest Rank:  PRIVATE
Length of Service:  00  Year(s)  01  Month(s)  23  Day(s)
Education Level:  12	AFQT:  68
MOS:  8011
Proficiency/Conduct Marks (# of occasions):  0.0 (NFIR) / 0.0 (NFIR)	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	NONE

Periods of UA/CONF:  NONE

NJP:  NONE	SCM:  NONE	SPCM:  NONE	CC:  NONE	Retention Warning Counseling:  NONE

Administrative Corrections to the Applicant’s DD 214

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

	Block 28, Narrative Reason for Separation, should read: “FRAUDULENT ENTRY (DRUG ABUSE)”

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:	☒

Pertinent Regulation/Law

A.  The Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present, paragraph 6204, DEFECTIVE ENLISTMENT AND INDUCTION.

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 seeks a change in his RE-code in order to reenlist into the Armed Forces.
2.	The Applicant contends that his discharge was improper because he was intimidated by and under duress due to pressure from his chain of command to sign all of his separations documents without the assistance of counsel.
3.	The Applicant contends his discharge was improper as he has never knowingly or willfully ingested illegal substances.
4.	The Applicant contends his discharge was inequitable as he was a good recruit and showed outstanding leadership.
5.	The Applicant implies his post-service conduct warrants consideration for an upgrade as evidenced by two letters of recommendation.

Decision

Date:  20150416	DOCUMENTARY REVIEW	Location: Washington D.C.	 Representation: NONE

By a vote of 5-0 the Characterization shall remain UNCHARACTERIZED.
By a vote of 5-0 the Narrative Reason shall remain FRAUDULENT ENTRY (DRUG ABUSE).
By a vote of 5-0 the Reenlistment Code shall remain RE-3F.

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 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 no 6105 counseling warnings and no misconduct resulting in nonjudicial punishment or court-martial.  However, the Applicant tested positive for cocaine at 344 ng/ml upon reporting to boot camp.  The Applicant did not have pre-service drug waiver prior to entering the Marine Corps.  Based on the Article 112a violation, processing for administrative separation is mandatory.  When notified of administrative separation processing using the notification procedure, the Applicant waived his rights to consult with a qualified counsel and submit a written statement.

Issue 1:  (Nondecisional) The Applicant seeks a change in his RE-code in order to reenlist into the Armed Forces.  Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code.  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.

Issue 2:  (Decisional) (Propriety)  RELIEF NOT WARRANTED.  The Applicant contends that his discharge was improper because he was intimidated by and under duress due to pressure from his chain of command to sign all of his separations documents without the assistance of counsel.  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.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention the command treated him unfairly or placed him under undue pressure.  The Applicant’s service included one positive urinalysis for cocaine upon reporting to boot camp.  The use of cocaine, other illegal drugs, or the improper use of prescription drugs are considered violations of UCMJ Article 112a.  Violations of UCMJ Article 112a is considered a serious offense for which a court-martial and punitive discharge is authorized.  The record of evidence shows that the Applicant was provided the opportunity to exercise his rights and that he chose not to.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  Relief denied.

Issue 3:  (Decisional) (Propriety)  RELIEF NOT WARRANTED.  The Applicant contends his discharge was improper as he has never knowingly or willfully ingested illegal substances.  The NDRB is not an investigative body, and allegations of having been served a drink spiked with cocaine at a civilian party or establishment should be made to an appropriate law enforcement organization or the Naval Inspector General’s Office.  It is incumbent on the Applicant to provide definitive evidence to clearly illustrate his lack of knowing or willful ingestion before entering boot camp and his failure to notify of either his recruiter or recruit training personnel of his allegedly accidental ingestion of prohibited substances while awaiting the start of boot camp.

Otherwise, the Navy Drug Screening Laboratory (NDSL) goes through a very thorough four-level analysis procedure, which includes immunoassay and gas chromatography/mass spectrometry testing, to accurately test all specimens, ensuring each positive sample is screened, re-screened, confirmed, and all procedures have been followed before a message is released.  All three tests (screen, re-screen, and confirmation) must be positive before a positive result is reported to the command.  After carefully reviewing the Applicant’s documentation, the NDRB determined it was not sufficient to prove his urinalysis results were false.  Based on the NDSL message, the NDRB determined the Applicant’s urinalysis was not a false positive.

Urinalysis specimens arriving at a Navy Drug Screening Laboratory (NDSL) are inspected for container damage or evidence of tampering, with particular attention to the condition of the box seals, which should be intact with the command’s Urinalysis Program Coordinator’s signature printed across the taped box seams.  After the package has passed this inspection, lab technicians unpack the urine specimens and carefully check that all bottles in the box correspond to the sample entries written on the accompanying chain of custody form (DD 2624). The bottles are then removed and inspected with the technicians noting any specimen container discrepancies, such as broken bottles, damage of tamper evidence seals, missing, incorrect, or incomplete social security numbers on the bottle labels or DD 2624s, and leakage of urine.  The lab reports all discrepancies back to the command.  If the discrepancies are serious enough to raise doubt in the validity of the results, the samples will not be tested.  The NDSL conducts an initial screening test on all specimens and negative specimens are discarded.  If a sample screens positive during the initial screening, it is then tested a second time.  If the sample screens negative during the second screening, it is discarded. If the sample screens positive a second time, it is considered a “presumptive positive.”  All “presumptive positive” specimens undergo a Gas Chromatography/Mass Spectrometry confirmation test.  The specimen must have tested positive in all three tests (screen, rescreen and confirmatory) and passed scrutiny in numerous reviews by drug testing experts prior to being certified as a positive result and reported to the originating command.  This certification, which is made by a senior chemist, is the final seal of approval necessary prior to reporting the specimen as a positive.  If the final certifying official has any doubt as to the accuracy, scientific validity or legal defensibility of the test results, the specimen is reported as negative in favor of the service member.  Relief denied.

Issue4:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends his discharge was inequitable as he was a good recruit and showed outstanding leadership.  The Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation.  The characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation.  Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition.  

An Uncharacterized discharge is warranted when separation is initiated while a member is within the first 180 days of continuous active duty except when the characterization of service as Under Other Than Honorable Conditions (UOTHC) is authorized or Honorable is clearly warranted.  The Applicant had no in-service misconduct that would rate an UOTHC discharge as his urinalysis indicated cocaine use before reporting to boot camp.  Additionally, there was no evidence of unusual circumstances involving personal conduct and performance that would merit an Honorable characterization.  Since the Applicant served only 54 days, an Uncharacterized discharge is the most appropriate characterization of service.

To correct the alleged inequity of his discharge the Applicant also wants his Narrative Reason for Separation changed to “CONVENIENCE OF THE GOVERNMENT.”  Although the Applicant maintains that he did not knowingly use drugs, he tested positive for cocaine upon reporting for boot camp.  Statements alone, without sufficient documentary evidence, are not enough for the NDRB to form a basis of relief.  According to regulations, an enlistment, induction, or period of service is fraudulent when there has been deliberate material misrepresentation, including the omission or concealment of facts that, if known at the time, would have reasonably been expected to preclude, postpone, or otherwise affect the service member’s eligibility for enlistment or induction.  Federal law requires all persons applying for enlistment in the military to disclose all pre-service drug use.  Therefore, the Applicant had an obligation to truthfully and fully answer all questions regarding his drug use.  Based on the Applicant’s failure to truthfully and fully disclose information regarding his pre-service drug use, his command determined that his enlistment was fraudulent.  The Marine Corps has a zero tolerance policy for the use of illegal drugs and the in-service detection of illegal drugs on a urinalysis 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.  At a minimum, the detected use of illegal drugs requires mandatory processing for administrative separation regardless of grade, performance, or time in service.  The Board determined the assigned Narrative Reason for Separation of service is proper and appropriate.  Relief denied.

Issue5:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant implies his post-service conduct warrants consideration for an upgrade as evidenced by two letters of recommendation.  The NDRB considers 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.  The Applicant provided two post-service character references and numerous pre-service awards and accolades.  The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum; however, 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.  To warrant an upgrade, the Applicant’s post-service efforts need to be more encompassing.  The Board determined that the documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration.  The characterization of service received was appropriate considering the length of service and UCMJ violations.  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 UNCHARACTERIZED, the narrative reason for separation shall remain FRAUDULENT ENTRY (DRUG ABUSE), and the reenlistment code shall remain RE-3F.

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:  Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code.  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