FOR
   ex-, USMC
MD07-00071

Current Discharge and Applicant’s Request:

Application Received:  				20061018
	Characterization of Service:		
	Basis for Discharge:			  due to:  
	Discharge Authority:			MARCORSEPMAN 6210.5
	Duty Assignment/Command at Discharge:	MAG-14 2DMAW CHERRY POINT NC 28533

Applicant’s Request:
	Characterization change to:		
	Narrative Reason change to: 		
	Review Requested:			
	Representation:  				
	
Applicant’s Issues:
1.	Employment Opportunities
2.	Unfair characterization due to service record
3.	Post service

Decision:

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

Date of Decision:					20070823
Location of Board:				Washington D.C.
Complete Service Record:				
Complete Medical Record:			
Complete Discharge Package:			

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

Issue 1:  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.  

Issue 2 (Equity):  The Applicant stated that her discharge was inequitable because it was based on one isolated event.   When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as under honorable conditions.  An under other than honorable conditions discharge is warranted when the reason for separation is behavior, such as drug abuse,  that constitutes a significant departure from conduct expected of a Marine.  The Applicant’s otherwise commendable service record is marred by credible evidence of her use of illegal drugs.  The Applicant pleaded guilty to violation of Article 112a of the Uniform Code of Military Justice (UCMJ) at a Summary Court-Martial (SCM).  She was found guilty by the SCM and reduced in rank from Lance Corporal (E-3) to Private (E-1).   Violation of Article 112a is considered a serious offense, for which a punitive (Bad Conduct) discharge is authorized if adjudged by a Special or General Court-Martial.   If not awarded a punitive discharge by a Court-Martial, a Marine who wrongfully uses illegal drugs must be processed for administrative discharge.   Separation under the latter circumstances normally results in a character of service of “under other than honorable conditions.”  An upgrade of characterization to under honorable conditions would not be appropriate in this case.

Issue 3 (Equity):  Normally, in order to grant relief the NDRB must find that a procedural impropriety or an inequity existed during the period of enlistment in question.  There is no law or regulation providing that an unfavorable discharge may be upgraded based solely on the passage of time, good conduct, or favorable endorsements from members of the civilian community subsequent to leaving the service.   However, the NDRB is authorized to consider post-service factors in deciding whether to change the character of a discharge.  Outstanding post-service conduct is considered by the NDRB 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.  The Applicant submitted a personal written statement in support of her post service conduct.  After careful consideration, the Board determined that the Applicant’s post service record of conduct did not justify upgrading the characterization of her service during the active duty enlistment in question.  
 
In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to refute 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 documents submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.

Summary of Service:

Prior Service:
Inactive: USMCR (DEP)				20000701-20010702 COG
Inactive: USMCR (DEP)				20011010 - 20011125  
Active:   					

Period of Service Under Review:
Date of Enlistment:  				20011126
Years Contracted:  				; Extension:   
Date of Discharge:				20031209
Length of Service
	Active:					02  Yrs  00  Mths  13  Dys  (does not exclude lost time)
	Inactive:					NONE
	Time Lost During This Period:		  Days UA:    Days Confinement:  
	
Education Level:  				
Age at this Enlistment:  				
AFQT:  						62
MOS:						6386
Highest Rank:					
Proficiency/Conduct marks:			4.4(5)/4.5(5)  [missing reduction Pro/Con]

Awards and Decorations (as listed on the DD Form 214):  NATIONAL DEFENSE SERVICE MEDAL, PRESIDENTIAL UNIT CITATION, LETTER OF APPRECIATION 3RD AWD, LETTER OF COMMENDATION, RIFLE EXPERT BADGE 2ND AWD

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

20011008:	Applicant certified understanding of Marine Corps policy concerning illegal use of drugs.

20030630:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 20030623, tested positive for Methamphetamine.

20030826:	Summary Court-Martial.
	Charge: Violation of the UCMJ, Article 112a.
	Specification:  Did, at an unknown location, between on or about 20030509 and on or about 20030609, wrongfully use methamphetamine.
	Plea: Guilty    Finding: Guilty.
	Sentence: Reduction to E-1.    CA action 20030826:  Sentence approved and ordered executed.

20031007:	Counseling:  Advised of deficiencies in performance and conduct (Illegal drug involvement, violation of Article 112a, specifically, unlawfully use of a controlled substance (Methamphetamines)), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.

Elements of Discharge:  [INVOLUNTARY]

Date Notified:					20030826
Basis for Discharge:	 due to:  
	
Least Favorable Characterization:	
Commanding Officer’s Intended Recommendation:	

Date Applicant Responded to Notification:		20030826
Rights Elected at Notification:
Consult with Counsel				
	Obtain Copies of Documents		
	Submit Statement(s) (date)			  
	Administrative Board			

Commanding Officer Recommendation (date):	 (20030826)
SJA review (date):				 (20031201)
Separation Authority (date):	COMMANDER, 2D MARINE AIRCRAFT WING (20031201)
	Basis for discharge directed:		 due to:  
	Characterization directed:			
Date Applicant Discharged:			20031209

Additional Documents Submitted by Applicant and Considered By Board

Total Number of Pages:				6
       
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.  The Marine Corps Separation and Retirement Manual, (MCO P1900.16F, effective 
01 Sep 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.

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.      .

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