eS © Docket No. MD14-00490

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

 

APPLICANT’S ISSUES

1. The Applicant contends his discharge was based on an isolated incident with only five months remaining on his enlistment.

2. The Applicant contends he completed his entire four year enlistment with a Good Conduct Medal and recommendations for
tetention from his direct superiors.

3. The Applicant contends his post-service conduct is worthy of an upgrade.

DECISION

Date: 20140717 DOCUMENTARY REVIEW Location: WASHINGTON D.C. Representation: NONE

By a vote of 5-0 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS.
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT.

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 two 6105 counseling warnings and two nonjudicial punishments (NJPs) for violations of
the Uniform Code of Military Justice (UCMJ): Article 112a (Wrongful use, possession, etc. of controlled substances) and
Article 128 (Assault). The Applicant did not have a pre-service drug waiver prior to entering the Marine Corps, and
acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 06 February1996.
Based on the Article 112a violation, processing for administrative separation is mandatory. When notified of administrative
separation processing using the administrative board procedure, the Applicant exercised his rights to consult with a qualified
counsel, submit a written statement, and request an administrative board. The Applicant’s administrative board unanimously
found that the preponderance of the evidence supported the accusations against him and that separation Under Other Than
Honorable Conditions was warranted.

Issue 1: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends his discharge was based on
an isolated incident with only five months remaining on his enlistment. Despite a servicemember’s prior record of service,
certain serious offenses warrant separation from the Marine Corps to maintain proper order and discipline. Violation of Article
112a is one such offense requiring mandatory processing for administrative separation regardless of prade, performance,
recommendations from his chain of command, or time in service. This 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. However, his command did not pursue a punitive discharge but opted instead for the more
lenient administrative discharge. Further, administrative discharge processing is a separate and distinct process from punitive
proceedings such as NJP or court-martial. Administrative discharge processing is administrative in nature and not considered a
form of punishment. As such, the Applicant’s inference that he was inequitably punished twice for the sarne misconduct is
erroneous. The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the
characterization of discharge given others in similar circumstances. Relief denied.

Issue 2: (Decisitonal) (Propriety/Equity) RELIEF NOT WARRANTED, The Applicant contends he completed his entire four
year enlistment with a Good Conduct Medal and recommendations for retention from his direct superiors. The Applicant
received a Good Conduct Medal for his first three years of service in his enlistment without misconduct. The Article 112a
violation later in his enlistment, however, required mandatory processing for administrative separation. Since 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, physical and mental condition, and recommendations from his chain of command. Based on the Applicant’s
® S Docket No. MD14-00490
NN OER ING, MEDIA

record of service, the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that
constituted a significant departure from the conduct expected of members of the Naval Service, and the awarded
characterization of service was warranted. Further, the Applicant’s contention that his alcoholism mitigates his misconduct
does not warrant an upgrade. Alcohol! consumption is never a rationale or an acceptable excuse for inappropriate conduct,
misconduct, or poor judgment. There is nothing in his record to show that he was not responsible for his actions or should not
be held accountable for his misconduct. Finaily, although the Applicant was discharged on the last day of his enlistment, he
was still properly discharged Under Other Than Honorable Conditions for Misconduct (Drug Abuse) and not for Completion of
Required Active Service. A servicemember does not reach the end of his enlistment until 2359 on the last day of his enlistment.
The NDRB determined his discharge was proper and equitable. Relief denied.

Issue 3: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends his post-service conduct is worthy of
an upgrade, 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 a personal statement, evidence of financial stability and continuous employment, a copy of his criminal background
check, training certificates, and four character references. 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. The Board determined 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 UCM violations. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service,

medical and service record entries and discharge process, the Board found the discharge was proper and equitable. Therefore,
the awarded characterization of service shall remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative
reason for separation shall remain MISCONDUCT. The Applicant remains cligible 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.

PERTINENT REGULATION/LAW

A. Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900. 168), effective
31 January 1997 until 31 August 2001.

 

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures
and Standards, Part H, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.
; Docket No. MD14-00490

, ex-Pyvt, USMC

 

CURRENT DISCHARGE AND APPLICANT’S REQUEST

Application Received: 20140124

Characterization of Service Received: (per DD 214) UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge: (per DD 214) MISCONDUCT

Authority for Discharge: (per DD 214) MARCORSEPMAN 6210.5 [DRUGS]

Applicant’s Request: Characterization change to: HONORABLE
Narrative Reason change to: NONE REQUESTED

SUMMARY OF SERVICE |
Prior Service: :
Inactive: USMCR (DEP) 19960207 - 19960303 COG Active: NONE |
Pre-Service Drug Waiver: NG

Period of Service Under Review:

Date of Current Enlistment: 19960304 Age at Enlistment: 20

Period of Enlistment: 4 Years 0 Months

Date of Discharge: 20000303 Highest Rank: LANCE CORPORAL

Length of Service: 04 Year(s) (0 Month(s) 00 Day(s)

Education Level: 12 AFOQT: 71

MOS: 6484

Proficiency/Conduct Marks (# of occasions): 4.4 (14) / 4.1 (14) Fitness Reports: NOT APPLICABLE

Awards and Decorations (per DD 214): Rifle MM NATO AFSM SSDR GCM
Periods of UA/CONF: NONE
NJP: 2
- 19990405: Article 128 (Assault)
Awarded: RESTR EPD FOP REIR Suspended: RESTR

- 1999[007: Article 112a (Wrongful use, possession, etc. of controlled substances, THC 22 ng/mL)
Awarded: RIR FOP Suspended: NONE

SCM: NONE SPCM: NONE CC: NONE

 

Retention Warning Counseling: 2
- 19980203: For alcohol-related incident, specifically, DWI with a BAC of .19 on 19971018.
- 19990115: For alcohol-related incident, specifically, disorderly conduct at a civilian establishment on 19990101.

TYPES OF DOCUMENTS SUBMITTED/REVIEWED
Related to Military Service:

DD 214: Kl Service/Medical Record: [J Other Records: C
Related to Post-Service Period:

Employment: 4 Finances: E | Education/Training: x

Health/Medical Records: [] Rehabilitation/Treatment: [7] Criminal Records:

Personal Documentation: [[] Community Service: oC] References: &]

Department of VA letter: [] Other Documentation. []

Additional Statements:

From Applicant: x From/To Representation: [] From/To Congress member: QO

Key: NFIR - Not found in record RESTR - Restriction NJF - Nonjudicial punishment SCM - Summary court-martial
SPCM - Special court-martial FOP - Forfeiture of pay RIR - Reduction in rank EPD - Extra duties

COMF - Confinement CC - Civilian conviction CCU - Correctional Custody Unit CBW - Confinement on bread and water
@ 6 Docket No. MD14-00490

CA ry re a,

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) P!-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 Jaw.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 NORB 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 tc

provide guidance to former service members in their efforts to obtain a discharge upgrade. If a fermer 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.

Reenlistmeni/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.
Additionatly, the NDRE 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 zelief.
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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