ex-, USMC
MD07-00045

Current Discharge and Applicant’s Request:

Application Received:  				20061002
	Characterization of Service:		
	Basis for Discharge:			  
	Discharge Authority:			MARCORSEPMAN 6210.5
	Duty Assignment/Command at Discharge:	1stbn, 7thmar, 1st mardiv, 29 palms, ca

Applicant’s Request:
	Characterization change to:		
	Narrative Reason change to: 		
	Review Requested:			
	Representation:  				
	
Issues:  1.  Unfair treatment by unit
             2.  Unfair Characterization of Service

Decision:

Date of Decision:					20070816
Location of Board:				Washington D.C.
Complete Service Record:				NoT FOUND
Complete Medical Record:			YES
Complete Discharge Package:			not FOUND

Regarding propriety, the Board found the discharge:	PROPER
Regarding equity, the Board found the discharge:	EQuITABLE

By a vote of 5-0 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS.	
By a vote of 5-0 the Basis for Discharge shall remain MISCONDUCT

Discussion:  
The Applicant’s Separation Documentation was not found.  However, existing Serviceman’s Record Book documentation clearly establishes the commission of an offense.  Service disposition of this type of offense routinely results in the involuntary separation of a service member.    The Applicant may refer to the Addendum for additional information regarding explanations and Board limitations. 

Issue 1 (Equity).  The Applicant implies that he was treated unfairly by his Unit.  The government enjoys 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.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was wrongfully charged and disciplined.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  Relief denied.  

Issue 2 (Equity).  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 discharge is warranted when significant negative aspects of a member’s conduct or performance of duty 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 one nonjudicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ), Article 112a, Wrongful Use of Controlled Substances.  Violations of UCMJ 112a, is considered serious offenses for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial.  An upgrade to honorable would be inappropriate.  Relief denied. 

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.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.

Summary of Service:

Prior Service:
Inactive: USMCR (DEP)				19941018 - 19950123  

Period of Service Under Review:
Date of Enlistment:  				19950124
Years Contracted:  				
Date of Discharge:				19981218
Length of Service
	Active:					03  Yrs  10  Mths  25  Dys  (does not exclude lost time)
	Inactive:					00  Yrs  00  Mths  00  Dys
	Time Lost During This Period:		0 Days UA:  0 Days Confinement
	
Education Level:  				
Age at this Enlistment:  				
AFQT:  						32
MOS:						0151
Highest Rank:					
Proficiency/Conduct marks (# of occasions)		4.4(11)4.1(11)

Awards and Decorations (as listed on the DD Form 214):  MERITORIOUS UNIT COMMENDATION, GOOD CONDUCT MEDAL, NATIONAL DEFENSE SERVICE, SEA SERVICE DEPLOYMENT RIBBON, RIFLE MARKSMAN BADGE

Service Record Entries Related to Characterization of Service or Basis for Discharge

19941015:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

19970409:	Counseling:  Advised of deficiencies in performance and conduct (Failure to pass the HMMWV driver’s course on three separate occasions.  This demonstrates an inability to retain the subject matter being taught, a lack of initiative in mastering the subject material by seeking remedial instruction, and an unwillingness to learn the skill at all.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

19980827:	NJP for violation(s) of UCMJ:
	Article 112a:  On or before 19980813, wrongfully use marijuana.
	Award:  Forfeiture of $591.00 for 2 months, restriction and extra duty for 45 days, reduction to E-3.
	Not appealed.

19980827:	Counseling:  Advised of deficiencies in performance and conduct (My illegal drug involvement, THC usage identified through urinalysis confirmed by NAVDRUGLAB San Diego, CA message 192301Z August 1998.), necessary corrective actions explained, sources of assistance provided.

Elements of Discharge:  [INVOLUNTARY]

Date Notified:					NOT FOUND IN RECORD
Basis for Discharge:	
Least Favorable Characterization:	
Commanding Officer’s Intended Recommendation:	

Date Applicant Responded to Notification:		NOT FOUND IN RECORD
Rights Elected at Notification:
Consult with Counsel				
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	Administrative Board			

Administrative Board Date:			NOT FOUND IN RECORD
	Findings, by preponderance of the evidence:	NOT FOUND IN RECORD.
	Recommendation on Separation: 		NOT FOUND IN RECORD
	Recommendation on Characterization:	NOT FOUND IN RECORD

Commanding Officer Recommendation (date):	
SJA review (date):				)
Separation Authority (date):	NOT FOUND IN RECORD
	Basis for discharge directed:		
	Characterization directed:			
Date Applicant Discharged:			19981218

Additional Documents Submitted by Applicant and Considered By Board

Total Number of Pages:				2
       
Related to Period of Service Under Review:
	From Service and/or Medical Record:		Other Records:	

Related to Other Period(s) of Service:
	From Service and/or Medical Record:		Other Records:	
       
Related to Post-Service Period:
	Employment:					Finances:	
	Health/Medical Records:				Substance Abuse:	
	Family/Personal Status:				Education:	
 	Community Service Efforts:			References:	
	Criminal Records:			

Other:
	Additional Statements From Applicant:		From Representative:	
        	Other Documentation (Describe)		      

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 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