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USMC | DRB | 2011_Marine | MD1100600
Original file (MD1100600.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)       20070910 - 20080721     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20080722     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20100330      H ighest Rank:
Length of Service : Y ea r M on ths 09 D a ys
Education Level:        AFQT: 47
MOS: 6073
Proficiency/Conduct M arks (# of occasions): 4.2 ( ) / 4.2 ( )      Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle EX , GWOTSM , NDSM

Periods of U nauthorized Absence (UA) / C onfinement :

NJP:

- 20091223 :       Article 112a (Wrongful use , possession, etc., of controlled substance ; specifically, wrongful use of marijuana ( 35 ng/ml THC) per naval drug lab urinalysis testing dated 21 Dec 2009)
         Awarded: RIR FOP RESTR EPD ORAL REPRIMAND Suspended:

SCM:     SPCM:    CC:      Retention Warning Counseling : None

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 an upgrade in the characterization of his service at discharge in order to facilitate employment opportunities.

Decisional issues : The Applicant contends his characterization of service at discharge was inequitable; his misconduct was an isolated incident and not the result of an intentional use of a controlled substance .

Decision

 Date: 20 1 202 09           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. The Applicant identified one decisional issue for the NDRB’s consideration (equity of the discharge characterization) . Additionally, the 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 1 7 (with parental consent) on a four- year enlistment obligation with a guaranteed contract of Aviation Me chan ic Option. The Applicant’s enlistment record reflects entry into the military service with a waiver to enlistment and induction standards for pre-service illegal drug use (marijuana). As a function of his enlistment waiver process, the Applicant acknowledged - in writing - his complete understanding of the Marine Corps Policy Concerning the Illegal Use of Drugs on 07 September 2007 . The Applicant completed one year and eight months of his four-year enlistment obligation.

The Applicant’s record of service does not include any paragraph 6105 retention-counseling warning s but does contain one nonjudicial punishment for v iolation of the Uniform Code of Military Justice (UCMJ): specifically, Article 112(a) (Wrongful use, possession, etc of a controlled substance - marijuana ). Based on the Applicant’s violation of Article 112(a), processing for administrative separation was mandatory based on service policy . The NDRB reviewed the Applicant’s discharge package to ensure the Applicant was afforded all rights, as required by the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) . The Applicant was notified - in writing - of the Command’s intent to process him for administrative separation due to Misconduct (Drug Abuse) in accordance with paragraph 6210.5 of the MARCORSEPMAN with a recommendation for characterization of service as Under Other Than Honorable Conditions. The Applicant chose to waive his right to consult with a qualified legal defense counsel and further waived his right to request a hearing before an administrative hearing board or to include a written statement for consideration by the Separation Authority. After review by the Staff Judge Advocate, the Separation Authority determined that the evidence of record was sufficient in law and fact to support the proposed reason for discharge. As such, 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).

Non-decisional Issue - The Applicant seeks an upgrade in the characterization of his service at discharge in order to facilitate employment opportunities. T here is no requirement, or law, that grants re-characterization solely on the issue of facilitating employment opportunities or access to v eterans benefits programs. Regulations limit the NDRB’s review solely to a determination of the equity and propriety of a discharge action when considering a change to an administrative discharge. As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.

Decisional Issues (Propriety/Equity) RELIEF NOT WARRANTED . The Applicant contends his misconduct was an isolated incident and not the result of an intentional use of a controlled substance.

Propriety - Despite a service member’s prior record of service, certain serious offenses, though isolated, warrant separation from the Naval Service in order to maintain good order and discipline of the service. Violation of Article 112(a) is one such offense, requiring mandatory processing for administrative separation, regardless of grade, performance, service record, or time in service. Moreover, this action usually results in an unfavorable characterization of service at discharge or, at a maximum, a punitive discharge with the possibility of confinement, if adjudicated and awarded as part of a sentence by a special or general court-martial. The Applicant’s command did not opt to pursue a punitive discharge but instead chose the more lenient nonjudicial punishment and administrative discharge process. The Applicant waived his right to present a rebuttal to the discharge action and the resulting characterization of service before an administrative hearing board ; he further waived his right to consult with a legal defense counsel. A preponderance of the evidence that the Applicant had violated Article 112(a) was established through positive urinalysis test results as reported by the Naval Drug Testing Laboratory. Test results of the Applicant’s urine sample confirmed the presence of THC (the metabolite of marijuana) in the Applicant’s urine . As such, the Separation Authority approved the command’s recommendation for separation and directed the Applicant be discharged for Misconduct (Drug Abuse) pursuant to paragraph 6210.5 of the MARCORSEPMAN. Based on the documentation of record, the NDRB determined that the separation was proper and the narrative reason for separation was accurate. A change in narrative reason for sepa ration would be inappropriate.

Equit y - The Applicant contends his characterization of service at discharge was inequitable; his misconduct was an isolated incident and not the result of an intentional use of a controlled substance. 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. The Applicant contends that his positive urine test result for illegal drug use was the result of unknowingly consuming a “marijuana cookie” but provided no evidence other than his statement to prove this contention. The Applicant entered military service with a waiver for illegal drug use - marijuana. On or about 09 December 2009, the Applicant tested positive for marijuana use . When presented the right to challenge the proposed discharge action, the Applicant waived his right to request an administrative hearing board and also chose not to provide a statement to the Separation Authority. Additionally, the Applicant waived his right to consult with a defense counsel. After carefully reviewing the Applicant’s documentation, the NDRB determined it was not sufficient to prove his illegal drug usage was no t “unknowingly. ”

Characterization of service at discharge is the recognition of a Marine’s performance and conduct during a period of enlistment and is not necessarily dependent upon the narrative reason for separation. When the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under Honorable conditions. An Under Other Than Honorable Conditions discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from that conduct expected of members of the Naval Service. The NDRB determined the Applicant’s conduct, which forms the primary basis for determining the character of service, reflected acts or omission s that constituted a significant departure from that conduct expected of a service member. The Applicant’s illegal drug use represented a specific act or omission that did constitute a significant departure from the conduct expected of a Marine. By a vote of 5-0, the NDRB determined that the narrative reason for separation and the resulting characterization of service at discharge was proper, was equitable, was warranted, and does remain consistent with the characterization of discharge given others in similar circumstances; an upgrade or change would be inappropriate. Accordingly, relief as requested is denied.

 Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, and the discharge process, the NDRB determined that Therefore, the awarded characterization of service shall and 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, 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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