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)      20130115 - 20130407     Active: 

Pre-Service Drug Waiver:

Period of Service Under Review:
Date of Current Enlistment: 20130408    Age at Enlistment:
Period of Enlistment: Years Months
Date of Discharge: 20140416     Highest Rank:
Length of Service: Year(s) Month(s) 09 Day(s)
Education Level:        AFQT: 82
MOS: 1142
Proficiency/Conduct Marks (# of occasions): () / ()   Fitness Reports:

Awards and Decorations (per DD 214):     Rifle

Periods of UA/CONF:

NJP:

SCM:

SPCM:

CIVIL ARREST:

CC:

Retention Warning Counseling:

- 20140331:      For illegal drug involvement; specifically, wrongful use of marijuana.

- 20140214:      For illegal drug involvement; (Marijuana and Oxycodone) identified through self admission and subsequent evaluation from the substance abuse rehabilitation program (SARP) counselor on 14 February 2014.

- 20131206:      For UA from liberty formation at 0005 on 20131129 and returned to your appointed place at 0333 on 20131129.

Administrative Corrections to the Applicant’s DD 214

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

Types of Witnesses Who Testified

         Expert:           Character:      

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 his discharge is impeding his ability for better employment opportunities, and education benefits.
2.       The Applicant contends his discharge is improper because it is based on his voluntary statements during his self-referral for substance rehabilitation treatment.
3.       The Applicant contends his discharge is improper because he was discouraged from exercising his right to an administrative separation board by his command.
4.       The Applicant contends his discharge is inequitable because his involvement in the use of illegal substances was minimal.
5.       The Applicant contends his discharge is inequitable because he is sufficiently deterred from substance abuse.
6.       The Applicant contends his discharge is inequitable because it is contrary to the Marine Corps’ need for general deterrence.
7.       The Applicant contends his overall actions merit consideration for clemency.

Decision


Date: 20150430           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 for wrongful use of illegal drugs, and for Unauthorized Absence from liberty formation. The Applicant a pre-service drug waiver prior to entering the Marine Corps, acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 11 January 2013. 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, and submit a written statement, but waived his right to request an administrative board.

: (Nondecisional) The Applicant contends his discharge is impeding his ability for better employment opportunities, and education benefits. 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.

: (Decisional) () . The Applicant contends his discharge is improper because it is based on his voluntary statements during his self-referral for substance rehabilitation treatment. The Applicant’s record shows that he participated in a random urinalysis test for illegal drug use on 17 December 2013. Prior to the results of the urinalysis test coming back to the command, the Applicant admitted to the substance abuse control officer (SACO) in his unit that he had used illegal drugs (Marijuana and Oxycodone). The purpose of self-referral is to provide service members with the opportunity to receive rehabilitation treatment, not to attempt to avoid punishment after submission of a urinalysis sample that the service member suspects will result in discovery of illegal drug use. OPNAVINST 5350.4D states that: “Any member who has been notified of the requirement to submit, or actually has submitted, a urine sample for analysis under any testing premise is ineligible to participate in the self-referral program until results of the current urinalysis has been received by the command and any potential disciplinary or administrative actions have been initiated.” The Applicant’s statements of wrongful illegal drug use to the SACO, to criminal investigators, and also to his commander were not protected and could be properly used in the determination of the Applicant’s characterization of service. Relief denied.


: (Decisional) () . The Applicant contends his discharge is improper because he was discouraged from exercising his right to an administrative separation board by his command. The Applicant’s record clearly shows that he was advised of his rights during the administrative separation process, that he exercised his right to consult with legal counsel, that he exercised his right to make a written statement to the Separation Authority, and that he waived his right to an administrative board. In the Applicant’s written statement to the Separation Authority, he made absolutely clear that he did not want to stay in the Marine Corps, but wanted to be discharged to go back to college for his master’s degree. The Applicant stated: “Another reason I don’t want to stay is because it would be wasting my time that could be used to create a stable life for me. I am 24 years old and by the time my contract is over I would be 27 years old and I don’t want to waste my time being in an organization that I will go nowhere in and accomplish nothing.” There is no evidence in the Applicant’s record, and the Applicant did not provide any evidence to the NDRB, to show that he was improperly discouraged by his command from exercising his rights. Relief denied.

: (Decisional) () . The Applicant contends his discharge is inequitable because his involvement in the use of illegal substances was minimal. On 11 January 2013, the Applicant acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs. The policy for illegal drug use is zero tolerance of even one incident of wrongful use of illegal drugs. For even one incident of wrongful use of illegal drugs, processing for administrative separation is mandatory. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service. 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. Relief denied.

: (Decisional) () . The Applicant contends his discharge is inequitable because he is sufficiently deterred from substance abuse. The Applicant was processed for administrative separation from the Marine Corps for Misconduct due to his wrongful use of illegal drugs. The Applicant’s command provided him with substance abuse rehabilitation treatment prior to his separation. The intent of this treatment is for the benefit of the Applicant after discharge, not to rehabilitate the Applicant for continued service. The Applicant’s misconduct warranted his administrative separation and characterization of service. Relief denied.

: (Decisional) () . The Applicant contends his discharge is inequitable because it is contrary to the Marine Corps’ need for general deterrence. It is the authority of the Separation Authority to determine the characterization of service warranted under an administrative discharge. The NDRB determined that the Applicant’s opinion on the need for the Marine Corps for general deterrence of illegal drug use does not warrant a change in the characterization of service as issued by the Separation Authority. Relief denied.

: (Decisional) () . The Applicant contends his overall actions merit consideration for clemency. The NDRB considers issues for clemency for only those service members who receive punitive discharges as part of a special court-martial sentence. However, as an issue for equity, the NDRB considers outstanding service and 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’s record of service shows that he committed fraud against the Marine Corps by deceitfully omitting his extensive pre-service illegal drug use during the enlistment process. The Applicant then continued to commit misconduct by wrongfully using illegal drugs while on active service in the Marine Corps. The Applicant provided a personal statement, evidence of continuous employment, and five 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 that 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 the Applicant’s fraudulent entry into military service, and wrongful use of illegal drugs while on active service. 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: Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code. 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