FOR
 ex-, USMC
MD06-01189

Current Discharge and Applicant’s Request:

Application Received:  				20060907
Characterization of Service:			
Narrative Reason for Separation:			INVOLUNTARY SEPARATION, MISCONDUCT
Discharge Authority:				MARCORSEPMAN 6210.5 AND 6210.6
Last Duty Assignment/Command at Discharge:	hqbn hqmc hh arlva

Applicant’s Request:	
	Characterization change to:		
	Narrative Reason change to: 		
	Review Requested:			
Representation:  					

Applicant’s Issues:
1. 	Reenlistment code change
2. 	Improper discharge
3.  	Unfair discharge characterization due to record of service

Decision:

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.

Date of Decision:					20070809     
Location of Board:				Washington D.C.
Complete Service Record:				YES
Complete Medical Record:			NO
Complete Discharge Package:			YES

Regarding propriety, the Board found the discharge:	pROPER
Regarding equity, the Board found the discharge:	EQUITABLE

Issue 1:  The Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding this issue.       

Issue 2 (Propriety):   In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  Commission of a serious offense does not require adjudication by nonjudicial or judicial proceedings, or a civilian conviction; however, the offense must be substantiated by a preponderance of evidence.  The statements and documents provided by the Applicant do not refute the presumption of regularity in this case.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his action.  The Applicant was provided the opportunity to present his case before an administrative board, but waived that right, thus accepting the discharge recommended in the letter of notification.  

Issue 3 (Equity): There is credible evidence in the record that the Applicant was involved with illegal drugs.    Separation for involvement with illegal drugs generally results in characterization of service under other than honorable conditions.  The record indicates that the Applicant admitted to purchasing illegal drugs with intent to distribute them.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct, or that he should not be held accountable for his actions.  When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  An under other than honorable conditions discharge is warranted when the reason for separation is behavior that constitutes a significant departure from conduct expected of a Marine, or negative aspects of a member’s conduct outweigh the positive aspects of the member’s military record.   The Applicant’s conduct during the current period of service, which forms the primary basis for determining the character of his service was marred by involvement with illegal drugs and his commission of a serious offense in the civilian community fell within the criteria for discharge under other than honorable conditions.   An upgrade to honorable would be inappropriate.  

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge both proper and equitable.  The Board did note some minor administrative corrections that should be made to the Applicant’s DD214 as listed below: 

Summary of Service:

Prior Service:
Inactive: USMCR (DEP)				19941222 - 19950911	
Active:   		             			 19950912 - 19981021	

Period of Service Under Review:
Date of Enlistment:  				19981022
Years Contracted:  				;   Extension:   
Date of Discharge:				2000630
Length of Service
	Active:					01  Yrs  8  Mths  09  Dys  (Does not exclude lost time)
Time Lost During This Period:			  	
Education Level:  				
Age at this Enlistment:  				
AFQT:  						39
MOS:						0121
Highest Rank:					
Proficiency/Conduct marks (# of occasions):		4.7 (11)/4.6 (11)

Awards and Decorations (as listed on the DD Form 214):	(NASA) DISTINGUISHED SERVICE MEDAL, MERITORIOUS UNIT COMMENDATION, GOOD CONDUCT MEDAL, CERTIFICATE OF COMMENDATION (6TH AWARD), LETTER OF APPRECIATION (2ND AWARD), MERITORIOUS MAST

Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

19941221:	Applicant signed Marine Corps policy concerning illegal drugs.

20000330:	Applicant arrested and charged with possession of ecstasy with intent to distribute.  Applicant admitted to the Baltimore Police that he purchased $2,100.00 of ecstasy with the intent to sell.  Applicant is awaiting a court date from Baltimore County.  [Extracted from Commanding Officer’s letter dated 20000523.]

20000606:	Applicant evaluated as a result of a command referral for a drug related incident.  Applicant does not appear to meet DSM-IV criteria for drug/alcohol abuse or dependency at this time.  Recommend applicant be held strictly accountable for his actions and processed for administrative separation. 

Elements of Discharge:  [INVOLUNTARY]

Date Notified:					20000426
Basis for Discharge:				 DUE TO 
						 DUE TO 
Least Favorable Characterization:			
Commanding Officer’s Intended Recommendation:	

Date Applicant Responded to Notification:		20000428
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	Administrative Board			

Commanding Officer Recommendation (date):	  (20000523)
SJA review (date):				  (20000620)
Separation Authority (date):	COMMANDING GENERAL, MARINE CORPS BASE, QUANTICO, VA (20000620)
Narrative Reason directed:				MISCONDUCT DUE TO 
Characterization directed:				
Date Applicant Discharged:			20000630

Additional Information Considered by Board

Type of documentation submitted by the Applicant and considered by the Board
       
       	Document Type					#Pages
       Related to Period of Service Under Review:
	Service/Medical Record:				18
	Other Period of Service:				0
       Related to Post-Service Period:
	Community Service:				0
	Education:					0
	Employment:					0
	Health/Medical:					0
	Character Statements:				0
	Criminal Records Checks:				0
	Additional Statements from Applicant:		4
        Other Documentation (Describe Below)			4

        Total Number of Pages:				26

       Description of Other Documentation:
       	Circuit Court for Baltimore City, Order for Expungement of Records
	Circuit Court for Baltimore City, Criminal Division, General Waiver and Release
	Circuit Court for Baltimore City, Criminal Division, Certificate of Compliance
	Baltimore Police Department, Certificate of Compliance

Pertinent Regulation/Law

A.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), 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 II, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.

C.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 112a,  Wrongful use, possession, etc., of controlled substances.  

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe that 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.  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:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the 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.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his 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 Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’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 Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board 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 subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, 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 “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

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 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.  

Board Membership:  The names and votes of the members of the 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