FOR
 ex-, USMC
MD07-00073

Current Discharge and Applicant’s Request:

Application Received:  				20061017
	Characterization of Service:		
	Basis for Discharge:			  due to:   
	Discharge Authority:			MARCORSEPMAN PAR 6210.5
	Duty Assignment/Command at Discharge:	2d assault amphibian bn, 2d mardiv

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

Applicant’s Issues: 
1.  Reenlistment 
2.  Correction to official record
3.  Wrongful discharge
4.  Post Service conduct 

Decision:

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

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 does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding reenlistment and reenlistment codes.  

Issue 2:  The Board does not have the authority to correct official records.   The Applicant is directed to the Addendum for information on contacting the Board of Correction to Naval Records.  

Issue 3 (Propriety):  The Applicant stated in his statement accompanying the DD Form 293 that he was wrongfully discharged.   The Board interpreted this to mean the Applicant was appealing both the propriety and the equity of his discharge.  The Board is bound by the presumption of regularity in Governmental affairs in determining whether a discharge is proper or improper.  Normally, the Board will not direct a change to a discharge unless there is credible evidence that refutes the presumption of regularity, and indicates that any errors made would have resulted at the time in a change to the characterization or reason for discharge.   The Board found no credible evidence of impropriety in this case.  

The Applicant claims that an erroneous Administrative Remark entry on Page 11 of his Service Record Book may have been made.   The Board did not consider that entry in its decision.  Besides the fact that the entry was unsigned by the commander, his representative, or the Applicant, the Board does not believe the entry to be relevant to the characterization or reason for discharge.  The Board also considered the Applicant’s assertions that his positive urinalysis result was due to prescription medication, and that he was denied counsel prior to his Summary Court-Martial.  The Board did not find evidence in the record that the Applicant was under a prescription for narcotics at the time of his urinalysis.  Likewise, the Board found no evidence in the record indicating that the Applicant’s  Summary Court-Martial was improper, nor is there indication in the record of the Applicant exercising his right of appeal subsequent to that Summary Court-Martial.  The record does confirm that the Applicant consulted with legal counsel during the administrative separation process, and did so prior to electing to waive the separation hearing to which the Applicant was entitled.  After considering the information provided by the Applicant and the official record, the Board decided the discharge was proper.

Issue 3 (Equity):  An Honorable Discharge is appropriate when the quality of the member’s service has met the standards of accepted conduct and performance of duty for military personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  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.    There is credible evidence in the record that the Applicant wrongfully used a controlled substance while in the Marine Corps, behavior that significantly departs from conduct expected of military personnel.  The record does not show that the Applicant was not responsible for his actions, or that he should not have been held accountable for his actions.  Marine Corps policy required that the Applicant’s command process him for administrative separation due to wrongful drug use.  Separation under those conditions normally results in a characterization of service as under other than honorable conditions.   The Applicant was found guilty at a Summary Court-Martial of two specifications of violating Article 112a (Wrongful use, etc of a controlled substance) of the Uniform Code of Military Justice.  Article 112a violation is considered a serious offense, for which a punitive (Bad Conduct) discharge is authorized if adjudged by a Special or General Court-Martial.   Therefore, an upgrade of characterization to honorable would be inappropriate in this case.

Issue 4 (Equity): The NDRB is authorized to consider post-service factors in deciding whether to re-characterize a discharge.  However, 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 in the civilian life subsequent to leaving the service.   Ordinarily, the NDRB must find that a procedural impropriety or inequity existed during the period of enlistment in question before it can grant relief.  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 Board carefully considered all of the documentation provided by the Applicant, and commends him on his post service accomplishments and record of service to the community.  However,  the Board determined that the Applicant’s post service record of conduct did not justify upgrading the characterization of his 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 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)				19960821 - 19970811  
Active:   					

Period of Service Under Review:
Date of Enlistment:  				19970812
Years Contracted:  				; Extension:   
Date of Discharge:				19990212
Length of Service
	Active:					01  Yrs  06  Mths  01  Dys  (does not exclude lost time)
	Time Lost During This Period:		  Days UA:    Days Confinement:  16
	
Education Level:  				
Age at this Enlistment:  				
AFQT:  						63
MOS:						1833
Highest Rank:					
Proficiency/Conduct marks (# of occasions):		3.8(5)/3.6(5)

Awards and Decorations (as listed on the DD Form 214):  RIFLE MARKSMAN BADGE 1ST AWD

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

19960819:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs

19981013:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 19981008, tested positive for (Cocaine).

19981216:	Summary Court-Martial.
	Charge I: Violation of the UCMJ, Article 92 (3 specs).
	Specification 1: Did, on or about 19981002 fail to obey a lawful written order, to wit: Base Order 17006H by consuming alcohol under the age of 21.
	Specification 2: Did, on or about 19981212 fail to obey a lawful written order, to wit: Base Order 17006H by consuming alcohol under the age of 21.
	Specification 3: Did, on or about 19981002 fail to obey a lawful written order, to wit: Battalion Order P11000.2B, by having a female in his BEQ after 2400.
	Specification 4: Did, on or about 19981212 fail to obey a lawful written order, to wit: Battalion Order P11000.2B, by not signing a female in as his guest.
 	Charge I: Violation of the UCMJ, Article 112a (2 specs)
	Specification 1: Did, on or about 19981002, wrongfully use a controlled substance, specifically cocaine.
	Specification 2: Did, on or about 19981002, wrongfully use a controlled substance, specifically cocaine.  
 	Finding: To Charge I and II, and the specifications thereunder, guilty.
	Sentence: Forfeiture of $564.00, confinement for 60 days, reduction to E-1.
	CA action 19981216:  Sentence approved and ordered executed.

.Elements of Discharge:  [INVOLUNTARY]

Date Notified:					19981216
Basis for Discharge:	 due to:  
	
Least Favorable Characterization:	
Commanding Officer’s Intended Recommendation:	

Date Applicant Responded to Notification:		19981216
Rights Elected at Notification:
Consult with Counsel				
	Obtain Copies of Documents		
	Submit Statement(s) (date)			  
	Administrative Board			

Commanding Officer Recommendation (date):	 (19981216)
SJA review (date):				 (19990203)
Separation Authority (date):	COMMANDING GENERAL, 2D MARINE DIVISION, II MARINE EXPEDITIONARY FORCE (19990208)
	Basis for discharge directed:		 due to:  
	Characterization directed:			
Date Applicant Discharged:			19990212

Additional Documents Submitted by Applicant and Considered By Board

Total Number of Pages:				39
       
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)		 NEWSPAPER ARTICLE 

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.

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