ex-, USMC
MD07-00065

Current Discharge and Applicant’s Request:

Application Received:  				20061017
	Characterization of Service:		
	Basis for Discharge:			  
	Discharge Authority:			MARCORSEPMAN PAR 6210.5
	Duty Assignment/Command at Discharge:	HQBN, MCLB BARSTOW CA 92311

Applicant’s Request:
	Characterization change to:		
	Narrative Reason change to: 		
	Review Requested:			
	Representation:  				
	
Issues: 	1. Inequitable Discharge
	2. Post Service

Issue 1.  (Equity)  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 and improperly discharge.  There is credible evidence in the record that the Applicant used illegal drugs.  Mandatory processing for separation is required for Marines who abuse illegal drugs.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  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.  Relief Denied.

Issue 2 (Equity).   The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, there is no law or regulation, which provides that an unfavorable discharge, may be upgraded based solely on the passage of time, good conduct, or favorable endorsements in the civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, to the extent that 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.  The Applicant provided three character statements and one document of employment.  The Applicant's efforts need to be more encompassing.  For example, the Applicant could have produced evidence of a verifiable and continuous employment record, evidence of continuing educational pursuits, documentation of community service, and certification of non-involvement with civil authorities.  The Board determined that the documentation provided by the Applicant did not mitigate the circumstances that resulted in the characterization of discharge.  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.

Decision:

Date of Decision:					20070823
Location of Board:				Washington D.C.
Complete Service Record:				NO
Complete Medical Record:			YES
Complete Discharge Package:			NO

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

By a vote of  the Characterization shall  .	
By a vote of  the Basis for Discharge shall   due to  .

Summary of Service:

Prior Service:
Inactive: USMCR (DEP)				19950629 - 19950723  

Period of Service Under Review:
Date of Enlistment:  				19950724
Years Contracted:  				
Date of Discharge:				19970711
Length of Service
	Active:					01  Yrs  11  Mths  17  Dys  (does not exclude lost time)
	Inactive:					NONE
	Time Lost During This Period:		Days UA:    Days Confinement:  
	
Education Level:  				
Age at this Enlistment:  				
AFQT:  						65
MOS:						0151
Highest Rank:					
Proficiency/Conduct marks (# of occasions):		4.6(5)/4.1(5)

Awards and Decorations (as listed on the DD Form 214):  NATIONAL DEFENSE SERVICE MEDAL, CERTIFICATE OF COMMENDATION, CERTIFICATE OF APPRECIATION

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

19950628:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs

19970708:	Certification that Applicant consulted with counsel for pending NJP, violation of Article 112a and 134 of the UCMJ.  Applicant also certified that acceptance of NJP did not preclude the command from taking other adverse administrative action.

19970708:	NJP for violation(s) of UCMJ:
	Article 112a: Wrongfully used, possessed, and introduced an unknown quantity of marijuana onto a military installation.
	Article 134: Wrongfully and unlawfully subscribe under lawful oath, false statement in the follow: that he LCPL T_ P. D_ had not engaged in the use or possession of controlled substances and had not observed others engaged in the use or possession of controlled substance, which statement he did not then believe to be true.  In that he, LCPL T_ P. D_ had never purchased marijuana for his personal use and had no knowledge of LCPL C_ R. J_ purchasing marijuana, which statement he did not then believe to be true.
	Award:  Forfeiture of $500.00 for 1 month, restriction for 30 days, reduction to E-2.
	Not appealed.

19970710:	Counseling:  Advised of deficiencies in performance and conduct (Recent violation of the UCMJ which resulted in NJP proceedings), advised of being recommended for administrative discharge action.

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			

Commanding Officer Recommendation (date):	
SJA review (date):				
Separation Authority (date):	NOT FOUND IN RECORD
	Basis for discharge directed:		 
	Characterization directed:			
Date Applicant Discharged:			19970711

Additional Documents Submitted by Applicant and Considered By Board

Total Number of Pages:				4
       
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 Jan 97 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 and introduction of a Controlled Substance; Article 134, False Swearing.

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