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USMC | DRB | 2009_Marine | MD0900164
Original file (MD0900164.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20081024
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

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

Summary of Service

Prior Service:
 Inactive: USMCR (DEP)    19990831 - 20000419     Active: 

Period of Service Under Review:
 Date of Enlistment: 20000420      Age at Enlistment:
Period of Enlistment : Years Months
Date of Discharge: 20040419       H ighest Rank:
Length of Service: Year(s) Month(s) 00 D ay(s)
Education Level:         AFQT: 35
MOS: 3051
Proficiency/Conduct Marks (# of occasions): ( ) / ( )   Fitness Reports:

Awards and Decorations (per DD 214):     Rifle (2) w1*

Periods of UA/CONF: SCM: SPCM: CC:

NJP:
- 20001218:      Article 92 (Violate a lawful order), 4 specifications
         Awarded: Suspended:

- 20010821:      Article 128 (Assault)
         Article 92 (Dereliction of duties)
         Awarded: Suspended:

Retention Warning Counseling:

- 20001218:      For violation of a lawful order.
- 20010724:      For assault and dereliction of duty.

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:           Substance Abuse:                           Criminal Records:       
         Family/Personal Status:                   Community Service:                References:              
Additional Statements:
From Applicant:         From Representation:     From Congress member:

Other Documentation:


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

Applicant’s Issues

 1. Urine sample was tampered with.
2. Record of service.

Decision


 Date: 2009 0223             Location: Washington D.C.        R epresentation :

By a vote of the Characterization shall GENERAL (UNDER HONORABLE CONDITIONS).
By a vote of the Narrative Reason shall MISCONDUCT .
Discussion

 : ( ) . The Applicant contends he is entitled to a discharge upgrade because the urine sample which led to his discharge showed evidence of tampering. In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service was marred by two NJPs for violations of the Uniform Code of Military Justice (UCMJ): Article 92 (Disobeying a lawful order); Article 92 (Dereliction in the performance of duties) and Article 128 (Assault). These are considered serious offenses which could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The command did not refer the Applicant for a court-martial but opted instead for an administrative discharge.

An Administrative Separation Board held 13 April 2004 determined the preponderance of the evidence supported the allegation the Applicant had used marijuana. The NDRB advises the Applicant certain serious offenses warrant separation from the service in order to maintain proper order and discipline. The confirmed use of illegal drugs is one such offense requiring mandatory separation regardless of time in service, grade or record of service. Violations of the Marine Corps’ drug policy warrant, at a minimum, mandatory processing for an administrative separation which usually results in an unfavorable characterization of discharge. At a maximum violations warrant a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The pertinent events in the Applicant’s case are given below:

         - 9 Dec 2003: Applicant referred to SPCM for Article 112a violation.

 - 29 Dec 2003: SPCM charges dismissed because of concerns of admissibility of urinalysis results at trial. The
Drug Lab message reported discrepancies with the Applicant’s sample; “Collection date on label is
illegible” and “SSN is illegible.” The Drug Lab did test the sample and reported the sample
indicated the Applicant used marijuana.

         - 4 Feb 2004: Applicant evaluated for substance abuse; no diagnosis made.

         - 26 Feb 2004: Applicant Completes IMPACT substance abuse training program.

         - 17 Mar 04: Applicant notified of Administrative Separation processing.

 - 13 Apr 04: Administrative Separation Board held. The Government called an expert witness from the Navy Drug
         Lab to testify at the hearing. Her testimony explained the discrepancies were limited to an illegible
collection date and partially illegible social security number. The testimony also stated the sample was
clearly identified by the legible bottle number and batch number. The testimony also stated the bottle and


         the tamper-proof seals were intact. The Board finds the preponderance of the evidence proves the
Applicant used marijuana, and votes 3-0 to separate with “Under Other Than Honorable Conditions”
(OTH) discharge but recommends discharge be suspended.
        
         - 15 Apr 04: CG approves board’s recommendation to separate with OTH, but does not agree with the discharge
suspension and directs the Applicant be separated before his EAS.

         - 19 Apr 04: Applicant separated as directed by CG.
The NDRB determined the Applicant’s case was processed properly. Although his urine sample may not have been admissible in court due to administrative problems, the command and the Board determined the administrative problems did not compromise the integrity of the results. His case was heard before a properly comprised and executed administrative separation board which concluded the evidence supported the allegation of illegal drug use by the Applicant. The NDRB determined the awarded discharge characterization was appropriate and a discharge upgrade would be inappropriate.
: ( ) . The Applicant contends he is entitled to a discharge upgrade due to his record of service. As discussed above under Issue 1, violations of the Marine Corps’ drug policy require, at a minimum, mandatory administrative separation processing regardless of time in service, grade or record of service. The NDRB determined the awarded discharge characterization was appropriate and an upgrade based on record if service would be inappropriate.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record, Discharge Process and evidence submitted by the Applicant, the Board found

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 .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ: Article 92 and Article 112a.

ADDENDUM: Information for the Applicant

 Complaint Procedures : If you believe that 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 : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the 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. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his 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 Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. 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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’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 Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Additionally, the Board 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 subsequently is processed for an administrative involuntary separation or is referred to a court-martial for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, 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 Board for Correction of Naval Records can grant this type of narrative reason change.

 Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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. Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

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 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

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