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USMC | DRB | 2011_Marine | MD1100564

Original file (MD1100564.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20101222

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)       20080320 - 20080511     Active:

Period of Service Under Review:
Date of Current Enlistment: 20080512     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20100304      H ighest Rank:
Length of Service : Y ea r M on ths 23 D a ys
Education Level:        AFQT: 61
MOS: 3043
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle , ,

Periods of U nauthorized Absence (UA) or Confinement : None

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

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

Nondecisional issues: The Applicant seeks a change in his reenlistment code (RE-Code) in order to facilitate reenlistment in the A rmed F orces.

Decisional issues: The Applicant contends he was separated improperly , t hat improper testing and sample custody procedures invalidated the urinalysis test results and that undue command influence led to an inequity in the discharge action.

Decision

Date: 20 1 2012 6 Location: Washington D.C . R epresentation :

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 NDRB 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 NDRB completed a thorough review of the circumstances that led to the discharge action, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety.

The Applicant entered military service at age 19 on a four-year enlistment contract on a Supply and Accounting Option agreement , ultimately being trained as a Supply Administration and Operations Specialist. The Applicant’s enlistment record reflects entry into military service , as a contract E-2/Private First Class, without any requirement for waiver to enlistment and induction standards. The Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs - in writing - on 19 March 2009 as a function of his enlistment process. The Applicant completed one year and nine months of his four-year enlistment obligation before being discharged for illegal drug use.

The Applicant’s record of service documents no paragraph 6105 retention-counseling warnings and no nonjudicial or judicial punishments for any violations o f the Uniform Code of Military Justice (UCMJ) . The Applicant’s service record documents that Naval Drug Lab testing identified a test sample from a random urinalysis test with the Applicant ’ s name and social security number as testing positive for the presence of cocaine (189 ng/ml) - message dated 23 April 2009. Given the results of the testing, the command opted to refer charges for violation of Article 112(a) - W rongful use, possession, etc of a controlled substance - to trial by special court - martial. O n 17 June 2009, the charges were preferred against the Applicant ; however, on 1 July 2009, the charges were withdrawn and dismissed without prejudice from trial by special court - martial . On 15 October 2009 , the Applicant was notified of his command ’ s intent to administratively separate him from the service due to violation of the Marine Corps Policy on Illegal Drugs. The Applicant acknowledged the notification on 16 October and elected his rights; the Applicant consulted with defense counsel and requested to exercise his right to be heard before an administrative discharge review board. The c ommand failed to provide the administrative board, as required, and on 16 October 2009, forwarded their recommendation to the Separation Authority for discharge pursuant to paragraph 6210.5 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) - Misconduct (Drug Abuse) - with a recommendation for an Under Other T han Honorable Conditio ns characterization of service.

The service record indicates that some time prior to 15 December 2009, the recommendation for separation was returned to the Applicant’s command in order that the administrative discharge board be held, as required. On 15 December 2009, a board of members was directed to convene to hear the case regarding the Applicant; due to an improper paneling of members (lack of a field grade officer), the board was replac ed and a new board was empanell ed on 21 December 2009. On the same day, the administrative discharge board was convened. The board determined that a preponderance of the evidence proved the allegation of misconduct as specified. By a majority vote, the board recommended separation (without suspension) and recommended that the Applicant receive an Under Other Than Honorable Conditions c haracterization of service at discharge. The results of the board were endorsed and forwarded to the Separation Authority on 21 January 2010. The chain of command endorsed the board ’s findings to the Separation Authority. After review by the Staff Judge Advocate, the Separation Authority determined that the board results and the evidence of record were sufficient in law and fact to support the proposed reason for discharge. As such, on 17 February 2010, the Separation Authority directed the Applicant’s discharge Under Other Than Honorable Conditions pursuant to paragraph 6210.5 of the MARCORSEPMAN - Misconduct (Drug Abuse); he further directed that the Applicant be assigned an RE-4B re-entry code (not recommended for reenlistment - in service drug abuse) . On 22 February 2010, the Applicant submitted a Request Mast to the Separation Authority, contending that he did not have a complete understanding of the case; the Request Mast was denied due to its relation to a separation action in accordance with applicable directives governing t he Request Mast Procedures.

Non-decisional Issu e - The Applicant seeks a change in his reenlistment code (RE-Code) in order to facilitate reenlistment in the A rmed F orces. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the A rmed F orces, and is not authorized to change a reentry code. Additionally, there is no requirement, or law, that grants re-characterization solely on the issue of facilitating reenlistment or employment opportunities or access to v eterans benefits programs. Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge. As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.

The NDRB is not authorized to change the reentry code as requested; however, the Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm .

Decisional Issues (Propriety/Equity) RELIEF WARRANTED . The Applicant contends he was separated improperly , that improper testing and sample custody procedures invalidated the urinalysis test results and that undue command influence led to an inequity in the discharge action. In support of the Applicant’s contention, he provided numerous statements and witness testimonies from the board procedure, as well as post-board statements from staff noncommissioned officers in charge regarding senior enlisted command influence and tes ting procedure irregularities.

Propriety - The NDRB reviewed the entire discharge package, timeline of events surrounding the discharge process, and the evidence of record. The Applicant was required to return and re-seal the sample (re-sealing of the sample was annotated on the shipping document chain of custody form and is visual ly obvious in the Naval Drug Lab photo documentation provided). Regardless of when the sample was re-sealed, the chain of custody was broken and the urine sample was invalidated once the Applicant relinquished custody of his sealed sample to the Substance Abuse Control Officer and the tamper proof seal was broken. The validity of the urinalysis program is predicated on the chain of custody not being broken and the sample being intact upon arrival at the Naval Drug Lab. When the tamper-proof seal was found to have been broken, a new sample was required to be obtained - proper procedures were not followed. Given the irregularities involved, the chain of evidence was lacking for trial by special court - martial where the more stringent rules of evidence are required; as such, the charges were withdrawn based on the defense ’ s motion to dismiss.

The Applicant’s sample was tainted - the seal was broken after the sample was released from his custody. Given the statements provided regarding the testing procedures and the sample in question, coupled with the supporting documents, facts, and circumstances unique to this case, the NDRB discerned that the results of the urinalysis were invalid and the Applicant was , therefore, separated improperly . As such, the discharge action should not have occurred and relief in this specific case is warranted. In cases where no other reason s for separation as set forth in the MARCORSEPMAN are appropriate, but where separation of a member is considered to be in the best interest of the service, the Secretary of the Navy has the authority to direct the separation of any member prior to the expiration of their term of service. Given the impropriety of the discharge action, and s ince there is no longer any other narrative reason for separation that accurately describes why the Applicant was separated, the NDRB determined the reason for the Applicant’s discharge shall change to Secretarial Authority .

Equity - Given the improper discharge action as noted above, the basis for the characterization of service is no longer valid; as such, it is no longer equitable. Based on the evidence of record, the lack of any documented misconduct, and in consideration of the statements from the chain of command during the administrative board hearing regarding the Applicant’s performance and conduct, the NDRB determined the quality of the Applicant’s service met the standards of accepted conduct and performance of duty for military personnel . As such, it is appropriate to characterize that service under H onorable conditions.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, evidence provided by the Applicant, and the discharge process, the NDRB determined that the discharge action was improper. Th erefore, the awarded characterization of service shall and the narrati ve reason for separation shall change to .

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 | 2011_Marine | MD1100564

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