ex- , USMC

Current Discharge and Applicant’s Request

Applicant’s Request:     Characterization change to:
         Narrative Reason change to:
        
Summary of Service

Prior Service:
Inactive:        USMCR (DEP)      20080917 - 20081228     Active: 

Pre-Service Drug Waiver:

Period of Service Under Review:
Date of Current Enlistment: 20081229    Age at Enlistment:
Period of Enlistment: Years Months
Date of Discharge: 20121002     Highest Rank:
Length of Service: Year(s) Month(s) 04 Day(s)
Education Level:        AFQT: 67
MOS: 6154
Proficiency/Conduct Marks (# of occasions): () / ()   Fitness Reports:

Awards and Decorations (per DD 214):     Rifle

Periods of UA/CONF:

NJP:

SCM:

SPCM:

CC:

Retention Warning Counseling:

- 20100930:      For Article 86 (Absence without leave). On 17 September 2010 at 0530, SNM was UA to the rifle range and was officially dropped from training by range personnel.

- 20120522: For violation of the Marine Corps tattoo policy.

- 20120522:      For spice usage identified through urinalysis confirmed by Armed Forces Medical Examiner, Dover AFB report dated 09 February 2012.

Administrative Corrections to the Applicant’s DD 214

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

         Block 28, Narrative Reason for Separation, should read: "MISCONDUCT"

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:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

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. The Applicant contends that he was a self-referred drug dependent that should have been exempt from disciplinary action and offered treatment.
2. The Applicant contends that his urinalysis was a prerequisite for him to attend drug treatment and should not be used to determine characterization of service.
3. The Applicant contends that the urine sample that he submitted was so controverted that it should not have been accepted
into evidence.
4. The Applicant contends that disclosures made to treatment personnel relating to past substance abuse incidents should not have been used for any disciplinary action or basis for characterization of service.
5. The Applicant contends that fraudulent enlistment may only warrant an Under Other Than Honorable characterization of service if it involves concealment of a prior separation in which service was not characterized as honorable.
6. The Applicant contends that his discharge is too harsh and there is nothing in his military record that that merits anything less than an Honorable characterization of service.


Decision


Date: 20150319           Location: Washington D.C.        Representation:

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 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 discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included 6105 counseling warnings. Although the Applicant did not have any adjudicated misconduct, he was discharged for a positive urinalysis for the illegal use of spice. The Applicant a pre-service drug waiver for using marijuana prior to entering the Marine Corps, acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 16 AUGUST 2008. Based on the Article 112a violation, processing for administrative separation is mandatory. When notified of administrative separation processing using the procedure, the Applicant rights to consult with a qualified counsel, submit a written statement, and request an administrative board. At the Administrative Separation Board held on or about 08 August 2012, it was found by a majority vote that a preponderance of the evidence proves all acts or omissions alleged in the notification, and they recommended separation from the Marine Corps with a characterization of service of Under Other Than Honorable Conditions.

: (Decisional) () . The Applicant contends that he was a self-referred drug dependent that should have been exempt from disciplinary action and offered treatment. The Applicant also contends that his urinalysis was a prerequisite for him to attend drug treatment and should not be used to determine characterization of service. The government assumes a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. The NDRB requested the Applicant’s medical treatment records, but the VA was unable to locate them. However, the Applicant signed a urinalysis consent form dated 20121130 stating that he was suspected of having used illegal drugs; that he could decline consent to provide a sample; and that any evidence of drug use resulting from urinalysis testing may be used against him in court-martial. It also states that “This consent is given freely and voluntarily by me, and without any promises or threats having been made to me or pressure or coercion of any kind having been used against me.” There is no evidence in the record showing that the Applicant had any of his rights violated throughout the urinalysis process. Therefore, the evidence from the urinalysis could, and was used as evidence of a violation of the Marine Corps Illegal Drug Use policy. Relief denied.

: (Decisional) () . The Applicant contends that the urine sample that he submitted was so controverted that it should not have been accepted into evidence. The record of service has the chain of custody for the sample provided by the Applicant. The NDRB did not find any discrepancies in the handling of the sample prior to it being ship to the screening laboratory. Urinalysis specimens arriving at a Drug Screening Laboratory (DSL) are inspected for container damage or evidence of tampering, with particular attention to the condition of the box seals, which should be intact with the command’s Urinalysis Program Coordinator’s signature printed across the taped box seams. After the package has passed this inspection, lab technicians unpack the urine specimens and carefully check that all bottles in the box correspond to the sample entries written on the accompanying chain of custody form (DD 2624). The bottles are then removed and inspected with the technicians noting any specimen container discrepancies, such as broken bottles, damage of tamper evidence seals, missing, incorrect, or incomplete social security numbers on the bottle labels or DD 2624s, and leakage of urine. The lab reports all discrepancies back to the command. If the discrepancies are serious enough to raise doubt in the validity of the results, the samples will not be tested. The Applicant sample arrived at the DSL on 20120103 and the condition of the specimen was indicated as good.

The Applicant’s commands specifically indicated that they wanted the specimen tested for spice. The DSL conducts an initial screening test on all specimens and negative specimens are discarded. If a sample screens positive during the initial screening, it is then tested a second time. If the sample screens negative during the second screening, it is discarded. If the sample screens positive a second time, it is considered a “presumptive positive.” All “presumptive positive” specimens undergo a Gas Chromatography/Mass Spectrometry confirmation test. The specimen must have tested positive in all three tests (screen, rescreen and confirmatory) and passed scrutiny in numerous reviews by drug testing experts prior to being certified as a positive result and reported to the originating command. This certification, which is made by a senior chemist, is the final seal of approval necessary prior to reporting the specimen as a positive. If the final certifying official has any doubt as to the accuracy, scientific validity or legal defensibility of the test results, the specimen is reported as negative in favor of the service member. The Applicant sample was screened for synthetic cannabinoids using liquid chromatography tandem mass spectrometry. The results of the test were positive for pentanoic and butanoic acids which are both synthetic cannabinoids found in Spice. The NDRB did not find any evidence to suggest that the urine sample was tampered with nor is there any evidence to support the notion that the testing facility was not an authorized facility to conduct the test. Relief denied.

: (Decisional) () . The Applicant contends that disclosures made to treatment personnel relating to past substance abuse incidents should not have been used for any disciplinary action or basis for characterization of service. The Applicant also contends that fraudulent enlistment may only warrant an Under Other Than Honorable characterization of service if it involves concealment of a prior separation in which service was not characterized as honorable. The MARCORSEPMAN Par. 6204.3 states “Characterization of service under other than honorable conditions may only be issued when the fraud involves concealment of a prior separation in which service as not characterized as honorable (the administrative board procedure of paragraph 6304 must be used if characterization under other than honorable conditions is desired). In all other cases, the notification procedure of 6303 will be used and service will be characterized as honorable , general (under honorable conditions), or uncharacterized. Seeing that the Applicant was in the service for more than 180 days, an Uncharacterized characterization of service was not available to him.

On 20120522, the Applicant was notified of separation proceedings per MARCORSEPMAN paragraph 6210.5 due to drug abuse. The least favorable characterization that the Applicant could receive due to this violation was an Under Other Than Honorable discharge. Upon separation, a command can notify a member for all known reasons. On 20120726, the Applicant was also notified of separation proceedings per MARCORSEPMAN paragraph 6204.3 due to his admission to medical personnel of his pre-service treatment for addiction to opiates which was not identified on his DD Form 1966, medical history, or medical examination form.” The least favorable characterization of service for this violation was General (Under Honorable Conditions) but his Commanding Officer stated that “I am recommending that you receive an Other Than Honorable Conditions characterization of service based upon your illegal use of “Spice”, of which you have already been notified.” The NDRB found that the Applicant was appropriately notified and given the opportunity to exercise his rights throughout the discharge process. Relief denied.

: (Decisional) () . The Applicant contends that his discharge is too harsh and there is nothing in his military record that that merits anything less than an Honorable characterization of service. The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service. Certain serious offenses warrant separation from the service to maintain proper order and discipline. Violation of the Marine Corps Illegal Drug policy is one such offense requiring mandatory processing for administrative separation regardless of grade 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. The command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Marine Corps. A preponderance of the evidence reviewed supports the conclusion that the Applicant was in violation of the Marine Corps Drug policy, that separation from the Naval Service was appropriate, and that an Under Other Than Honorable Conditions discharge was warranted. 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 remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain MISCONDUCT. 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 for additional information.

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), 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.

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