Upgrade.Vet

USMC | DRB | 2010_Marine | MD1000009

Original file (MD1000009.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20090930

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

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

Summary of Service
Prior Service:
Inactive:         USMCR (DEP)       20070928 - 20071113     Active:

Period of Service Under Review:
Date of Current Enlistment: 20071114     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20090817      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 04 D a y ( s )
Education Level: (Associates Degree – 3.25 GPA)         AFQT: 77
MOS: 0161 Postal Clerk
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle , WITH 1 CAMPAIGN STAR , ,

Periods of UA / CONF :

NJP:     SCM:     SPCM:    CC:      Retention Warning Counseling :

Administrative Corrections to the Applicant’s DD 214

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

         “ UNDER OTHER THAN HONORABLE CONDITIONS ”

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:                  Oth er Documentation:
                  Additional Statements :
         From Applicant:          From /To Representation:          From /To Congress m ember :

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 .       Decisional issues : (1) (Propriety) Applicant contends that he was falsely accused of knowingly and willfully using drugs and was improperly discharged. (2) (Propriety/Equity) Applicant contends that the administrative separation board w as improperly paneled resulting in prejudice to the Applicant. (3) (Propriety) Applicant contends he was denied witnesses at t he administrative separation board hearing, which would have substantially altered the outcome of the hearing. (4) (Propriety/Equity) Applicant contends that the charges of violation of A rticle 112a were withdrawn when member elected trial by Special Court - Martial yet he was administratively separated without being proven to have illegally used drugs in violation of Article 112a of the UCMJ or the Marine Corps Policy on illegal drug use.

Decision

Date: 20 10 1029          Location: Washington D.C .         R epresentation : Virginia Dept of Veterans
                                                               Services

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 g overnment al a ffairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. T he Applicant identif ied four decisional issues to the Board. T he Board complete d a thorough review of the circumstances that led to the Applicant’s discharge , and the discharge process , to ensure discharge met the pertinent standards of equity and propriety.

The Applicant’s record of service included no 6105 retention- counseling warnings, no non-judicial punishments, no S ummary C ourts -M artial, no trial by Special Court - Martial , and no civilian convictions for violation s o f the Uniform Code of Military Justice (UCMJ) or local, state , or federal laws. The Applicant entered military service with a pre-service waiver for using marijuana five times prior to entering the Marine Corps and for a civilian criminal conviction of underage possession of alcohol and possession of drug paraphernalia. The Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs , in writing, on 24 September 2007 .

The basis for the Applicant’s separation was a positive urinalysis test for cocaine while under temporary additional duty orders to deploy to Iraq with a different command than his parent command. Based on a violation of Article 112a , processing for administ rative separation is mandatory per service policy . When notified of a dministrative separation processing using the procedure, the Applicant rights to consult with a qualified coun sel, to submit a written statement , and to request an administrative board .

The Applicant provided documentation to the NDRB that included: the Applicant’s personal statement to the Board; all records relating to his administrative discharge board and the discharge board reconsideration; employment records ; evidence of a drug-free life style in the form of multiple negative post-service drug tests; certification of non-involvement with civil authorities and c ollege acceptance ; and documentation of his community service. Submission 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 the post-service conduct provide s a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review .

: (Decisional) ( ) . The Applicant contends that he was falsely accused of knowingly and willfully using drugs and was subsequently improperly discharged. 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. T he Applicant’s C ommand received confirmation of a positive urine sample test report from the Naval Drug Testing Laboratory ; the specimen provide by the Applicant tested positive for cocaine metabolites at a level of 893 ng/ml. The Applicant’s urine sample was tested twice during screening and the positive sample was then confirmed by gas chromatography/mass spectrometry test ing . The screening level cut-off for cocaine testing is 150 ng/ml and the confirmation by gas chromatography/ mass spectrometry test minimum level is 100 ng/ml. Additionally, t he Command conducted an initial inquiry and determined that there was no legal or medical basis for the presence of cocaine in the Applicant’s body.

The Applicant’s urine sample was collected pursuant to a command - directed urinalysis upon checking in for temporary additional duty with his newly assigned unit. As a service - directed test, it was the Applicant ’ s requirement to comply and the test results are admissible evidence in both judicial and non-judicial proceedings. This positive urinalysis report properly served as the basis for administrative separation proceedings and for determination of characterization at separation. A positive urine sample test for cocaine , with no legal or medical basis for its presence in the body, meets the requirement for referr al of charges for administrative processing, non-judicial punishment, or judicial proceedings.

When notified of the Command’s intent to adjudicate the positive urine sample non-judicially, the Applicant opted to exercise his right to request a trial by court - martial. In accordance wit h the Applicant’s request, on 09 March 2009 the C ommand referred charges of violating Article 112a of the UCMJ to a trial by Special Court - Martial. The Special Court - Martial Convening Authority subsequently withdrew the charges citing availability of witnesses in Iraq and Afghanistan and the C ommand ’s desire to not delay the trial until the unit’s return to the United States . As such, the Command notified the Applicant in writing of their intent to recommend that he be separated from the Marine Corps administratively for Misconduct - Drug Abuse in accordance with paragraph 6210.5 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN). The Applicant acknowledge d his understanding in writing and elected to seek counsel and requested an administrative hearing board be held. After a thorough review of the Applicant ’ s service record, his administrative separation documentation, and the documentation provided to the Board by the Applicant, it was the determination of the Board that the Applicant was not falsely accused or improperly administratively separated. Relief denied

: (Decisional) ( ) . Applicant contends that the administrative separation board w as improperly paneled resulting in prejudice to the Applicant. The Applicant’s specific contention is that his Company Executive Officer was a paneled member of his administrative separation board and that this was improper and prejudicial to him because she had an “unfavorable impression of me.” In accordance with paragraph 6315.1 of the MARCORSEPMAN, there is no restriction on a member of the command being assigned as a member of the administrative hearing board. Additionally, the Executive Officer is not in the chain of command ; the E xecutive O fficer is an administrative staff officer of the command. Pursuant to the procedures of an administrative board, t he Applicant was provided an opportunity during v oir d ire to challenge the assignment of his C ompany E xecutive O fficer ; he and his d efense c ounsel did not. The Applicant’s defense counsel addressed this contention specifically during the Applicant’s request for Reconsideration of Administrative Separation and stated that the C ompany Executive Officer “appeared to manifest a favorable impression of the Applicant throughout the v oir d ire process. ” Based on the evidence and statements available in the record and provided by the Applicant, the NDRB determined that there was no impropriety and the outcome of the board was not prejudiced. No relief is warranted.

: (Decisional) ( ) . Applicant contends he was denied witnesses at t he administrative separation board hearing, which would have substantially altered the outcome of the hearing. The Applicant contends that he had only 8 days to prepare for the administrative separation board and that it was not enough time to arrange for character references from his parent unit in CONUS given communications challenges from his assigned location in Iraq. The Applicant was notified on 22 March 2009 ( 10 days prior to the administrative separation board ) of the command’s intent to administratively separate him. The Applicant acknowledged receipt of that notification in writing on 24 March 2009 ( 8 days prior to the board convening ) . However, the basis of the administrative separation board was the same as the charges originally referred to NJP and then to a Special Court - Martial , begin ning on 15 Feb 2009 and with the same defense counsel . The NDRB determined that the Applicant was aware of the requirement to refute the charge of illegal use of drugs and the need for character statements in his defense long before he was notified of the administrative separation board date. Though communications can be challenging in Iraq, ample time was afforded the Applicant to prepare his defense. Relief denied.

: (Decisional) ( ) . The Applicant contends that the charges of violation of A rticle 112a of the UCMJ were withdrawn after the Applicant elected trial by Special Court - Martial yet he was administratively separated without being proven to have illegally used drugs in violation of Article 112a of the UCMJ . V iolation of Article 112a is an offense that requir es mandatory processing for administrative separation regardless of grade or time in service . The MARCORSEPMAN directs that Commanders “ shall process Marines for administrative separation for illegal, wrongful, or improper use, possession, sale, transfer, distribution, or introduction on a military installation of any controlled substance .” This does not require a conviction in a trial by court -m artial, but it requires that the C ommand determine by a preponderance of the evidence that the Applicant violated the Marine Corps Policy on illegal drugs. In the Applicant’s case, t he command did not pursue a punitive discharge but , instead , opted for the more lenient administrative discharge.

An administrative separation board functions as an administrative rather than a judicial body. Accordingly, in the board's proceedings, the strict rules of evidence governing trials by court-martial are not applicable. The admissibility of evidence is a matter within the discretion of the president of the board. There is a sharp and distinct delineation between the administrative process - which has as its purpose the administrative elimination of unsuitable, unfit, or unqualified Marines - and the judicial process, the purpose of which is to establish the guilt or innocence of a member accused of a crime and to administer punishment when appropriate.

The standard of proof at an administrative board is a preponderance of the evidence as to all matters before the separation board. The b oard is tasked to rely upon its own judgment and experience in determining the weight and c redibility of the e vidence . The Applicant’s a dministrative separation b oard determined by a majority vote that the preponderance of the evidence proved the act that was alleged in the notification. The board further recommended separation with an Under Other Than Honorable Conditions characterization of service. The b oard did not recommend that the separation be suspended or that the Applicant be retained in the Individual Ready Reserve.

The NDRB conducted a detailed review of the administrative discharge process, the applicant’s service record, and the documentation he provided. The evidence produced by the Applicant and his defense counsel to rebut the contention of knowing and willful use of cocaine was an uncorroborated e - mail from a civilian who, although given every opportunity, refused to appear in a video teleconference or in telephonic testimony to the administrative board. Additionally, the deployed Commander delayed his findings and recommendation an additional two weeks in order to allow the Applicant to present any additional evidence to refute the allegation. Nothing was provided.

Moreover, the Applicant was afforded a second review by his parent command in CONUS when the Commanding General approved a reconsideration of the administrative separation. The Applicant’s parent command considered the original administrative discharge board findings as well as new character statements from members in his chain of command. The Applicant’s chain of command concurred with the findings and recommendations of the original a dministrative separation proceedings conduct by the deployed command in Iraq . The parent command recommended that the Applicant ’ s request for suspension of separation be denied , and that he be separated from the Marine Corps with an Under Other Than Honorable Conditions characterization of service. The Commanding General who granted the reconsideration reviewed the request, the additional information provided by the Applicant, and the recommendations of the c hain of c ommand and found no merit in the Applicant ’ s request. Accordingly, the Applicant’s request for relief was denied. By a vote of 4-1, the NDRB found no new information was presented to refute the Separation Authorit y’s determination, nor was any impropriety or inequity determined. 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, provided an 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. 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, specifically the paragraphs titled Additional Reviews and Post-Service Conduct .

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 Disable d 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), 2 Navy Annex, Washington, DC 20370-5100 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

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USMC | DRB | 2010_Marine | MD1000009

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