ex-, USMC
MD07-00067

Current Discharge and Applicant’s Request:

Application Received:  				20061012
	Characterization of Service:		
	Basis for Discharge:			  
	Discharge Authority:			MARCORSEPMAN PAR 6210.5
	Duty Assignment/Command at Discharge:	MWSS-372 MWSG-37 3DMAW CAMPEN CA 92055

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

Issues: 1. Change Reenlistment Code
            2. Upgrade Discharge for Loan Application purposes
            3. Characterization not reflective of honorable intentions and responsible conduct
            4. Post Service	

Issues 1&2:  The Board determined that this Issue is not an issue which can form the basis for relief for the Applicant or that the Board did not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding this issue. 

Issue 3: (Equity) 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.  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 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 service was marred by the award of two nonjudicial punishments (NJP), for violation of the Uniform Code of Military Justice (UCMJ) Article 86 (Absent without Leave), Article 91 (Willful Disobedience), Article 92 (Failure to Obey a Lawful Written Order), Article 112a (Wrongful use of Controlled Substances), Article 117 (Used Provoking Gestures), Article 128 (Assault) and Article 134 (Disorderly Conduct).  Violations of UCMJ Articles 92, 112a, and 128 are 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.

Issue 4:  (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, or good conduct 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 four character statements as documentation of post-service accomplishments.  The Applicant's efforts need to be more encompassing than those provided.  For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, evidence of drug free existence, and certification of non-involvement with civil authorities.  The Board determined that the documentation provided by the Applicant did not mitigate the misconduct 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:				YES
Complete Medical Record:			no
Complete Discharge Package:			yes

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)				19910904 - 19911118  
				
Period of Service Under Review:
Date of Enlistment:  				19911119
Years Contracted:  				
Date of Discharge:				19941215
Length of Service
	Active:					03  Yrs  00  Mths  26  Dys  (does not exclude lost time)
	Inactive:					NONE
	Time Lost During This Period:		Days UA:    Days Confinement:  
	
Education Level:  				
Age at this Enlistment:  				
AFQT:  						91
MOS:						1141
Highest Rank:					
Proficiency/Conduct marks (# of occasions):		4.4(9)/3.6(9)

Awards and Decorations (as listed on the DD Form 214):  NATIONAL DEFENSE SERVICE MEDAL, ARMED FORCES EXPEDITIONARY MEDAL, JOINT MERITORIOUS UNIT AWARD

Service Record Entries Related to Characterization of Service or Basis for Discharge
19910903	Applicant acknowledges USMC Policy concerning Illegal Drug Use.

19920927:	Applicant arrested in Tijuana, Mexico for disturbing the peace.  Incarcerated in Tijuana for 34 hours and then released to the San Diego Shore Patrol.

19930910:	NJP for violation(s) of UCMJ:
	Article 86: Absent from appointed place of duty at 1630, 19930907 for wall locker reinspection at Brks #22212.
	Article 91: Disobedience of a lawful order issued by Sgt P_ to prepare for wall locker reinspection.
	Award:  Restriction for 45 days (suspended for 6 months), extra duty for 30 days (suspended for 6 months).
	Not appealed.  Suspension vacated 19931201.

19931025:	Counseling:  Advised of deficiencies in performance and conduct (Alcohol related incident, specifically, violation of a lawful written regulation by consuming alcohol beverages in a transient barrack room.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  No written rebuttal.

19931209:	NJP for violation(s) of UCMJ:
	Article 128: Assaulted PFC N_ on or about 0202, 19931107 by striking him several times in the head.
	Article 117: Used provoking gestures toward CPL R_ kicking inside of the patrol vehicle while in custody.
	Article 134: Was disorderly in conduct while drunk on or about 0202, 19931107.
 	Award:  Forfeiture of $300.00 for 2 months, reduction to E-2.
	Not appealed.

19931215:	Counseling:  Advised of deficiencies in performance and conduct (Frequent involvement with senior personnel of authority and your frequent related incidents.  Inability to conform to military regimentation and your inability to interact with your fellow Marines due to frequent alcohol abuse.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  Applicant chose not to make a statement.

19940124:	NJP for violation(s) of UCMJ:
	Article 92: Failure to obey a lawful written order, breaking restriction from barrack from 2200, 19931210 to 0028, 19931211.
	Award:  Forfeiture of $200.00 for 1 month(suspended for 6 months), restriction and extra duty for 30 days, reduction to E-1.
	Not appealed.

19940512:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 19940506, tested positive for (THC).

19940517:	Counseling:  Advised of deficiencies in performance and conduct (Illegal drug involvement, specifically, THC usage as identified by NAVDRUGLAB MSG 122042Z MAY 94.  Have been given an appointment with a CSAC Counselor on 19940601 and also will be placed on the units USP program for a period of 30 days as a result of my action.), advised being processed for administrative discharge and judicial proceedings.  Applicant elected to make a statement.  19940522 Applicant failed to make statement.

19940525:	NJP for violation(s) of UCMJ:
	Article 112a: Did on or about 19940503 wrongful use marijuana, a controlled substance, as determined by urine sample obtained on 19940503.
	Award:  Restriction and extra duty for 45 days.
	Appeal Submitted 19940531.  Appealed denied 19940824.

19940616:	Medical officer evaluation:
	Impression: Drug Abuse (no code).
	Recommendations: Immediate administrative separation per current directive for in service drug usage.

Elements of Discharge:  [INVOLUNTARY]

Date Notified:					19940831
Basis for Discharge:	 due to:  
	
Least Favorable Characterization:	
Commanding Officer’s Intended Recommendation:	

Date Applicant Responded to Notification:		19940902
Rights Elected at Notification:
Consult with Counsel				
	Obtain Copies of Documents		
	Submit Statement(s) (date)			  
	Administrative Board			 (19941011)

Commanding Officer Recommendation (date):	 (19940902)
SJA review (date):				 (19941114)
Separation Authority (date):	COMMANDING GENERAL, 3D MARINE AIRCRAFT WING (19941118)
	Basis for discharge directed:		 due to:  
	Characterization directed:			
Date Applicant Discharged:			19941215

Additional Documents Submitted by Applicant and Considered By Board

Total Number of Pages:				7
       
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 P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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, Articles 92 (Failure to Obey a Lawful Written Order), Article 112a (Wrongful use of Controlled Substances) and Article 128 (Assault).

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