ex-, USMC
MD07-00187

Current Discharge and Applicant’s Request

Application Received:  20061128 	Characterization Received:  
Narrative Reason:  MISCONDUCT 		Authority:  MARCORSEPMAN 6210.5

Applicant’s Request:	Characterization change to:    
			Narrative Reason change to: 
Applicant’s Issues:	1.  Educational opportunities.
			2.  Employment opportunities in law enforcement.
			3.  Post service.
			4.  Falsely accused and discharged for drug abuse

Decision

By a vote of 5-0 the Characterization shall change to GENERAL (UNDER HONORABLE CONDITIONS).	
By a vote of 5-0 the Narrative Reason shall change to SECRETARIAL AUTHORITY.

Date:  20070912      Location:  Washington D.C.     The Board found that 

Discussion

Issue(s) 1-2:  The Board determined that these Issue(s) are not issue(s) 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. 

Issue 3 (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 Board determined that the documentation provided by the Applicant was not a mitigating factor that should effect change of the discharge

Issue 4 (Equity) The Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service.  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.  The NDRB reviewed all of the available records, supporting documents, facts, elements of discharge, evidence submitted by the Applicant, and circumstances unique to this case.  A particular circumstance of interest was the fact that the charge of drug abuse was withdrawn without prejudice yet the Applicant was subsequently notified of administrative proceedings where the discharge justification was misconduct due to drug abuse.  The NDRB noted that there was an inequity in the Applicant’s discharge action, is convinced that this was prejudicial to the Applicant, and therefore an inequity in the characterization did occur.  

When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  A general (under 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 conduct during the current period of service, which forms the primary basis for determining the character of his service, was marred by a finding of guilt at one Summary Court-Martial of Article(s) 86, 92, and 107.  The NDRB considers that a significant negative aspect of service and believes that the Applicant’s total service is properly characterized as general (under honorable conditions).  

In cases where no other reason for separation set forth in the Naval Military Personnel Manual or Marine Corps Separation and Retirement manual is appropriate, but where separation of a member is considered to be in the best interest of the service, the Secretary of the Navy has the authority to direct the separation of any member prior to the expiration of their term of service.  There is no other narrative reason for separation which accurately describes the reason the Applicant was separated.  Therefore, the NDRB determined that the reason for the Applicant’s discharge shall change to Secretarial Authority.

Summary of Service

Prior Service:
Inactive: USMCR (DEP)	20030807 - 20040111  	
Period of Service Under Review:
Date of Enlistment: 20040112		Years Contracted:  	Date of Discharge:  20051208
Length of Service:  01  Yrs  10  Mths  27  Dys	Lost Time:  Days UA:    Days Confined:  11
Education Level:  	Age at Enlistment:  	AFQT:  73	MOS:  0311  Highest Rank:  
Proficiency/Conduct marks (# of occasions):	4.3(5)/4.3(5)	 
Awards and Decorations (per DD 214):  COMBAT ACTION RIBBON, AFGHANISTAN CAMPAIGN MEDAL, SEA SERVICE DEPLOYMENT RIBBON, GLOBAL WAR ON TERRORISM SERVICE MEDAL, NATIONAL DEFENSE SERVICE MEDAL, RIFLE SHARPSHOOTER BADGE.

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

20050819:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 20050812, tested positive for cocaine (106).

20050901:	Charges preferred to Special Court-Martial for violation of the Uniform Code of Military Justice (UCMJ) Article 112a:  

20051013:	Article 112a charge withdrawn due to errors in the chain of custody and testing facility procedures.  The original charge is “withdrawn without prejudice”.  Additional charges referred to SPCM on 20050927 are withdrawn to Summary Court-Martial.     

20051013:	SCM -- Viol UCMJ Art. 86 - Fail to go to appointed place of duty, Art. 91 - Willfully disobey lawful order from a noncommissioned officer, Art. 107 - False statement.
	 Awarded - - FOP ($823.00) for (1 month); RIR (E-1); Confinement (15 days).

20051026:	MARCORSEPMAN 6105 counseling for my illegal drug involvement, cocaine usage identified through your drug message dated 20050819.  

20051026:	MARCORSEPMAN 6105 counseling for misconduct due to drug abuse.  Being processed for administrative separation.

Discharge Process

Date Notified:	20051101
Basis for Discharge:	 DUE TO 
Least Favorable Characterization:	
Commanding Officer’s Intended Recommendation:	

Date Applicant Responded to Notification:		20051101
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	Administrative Board			/WAIVED (20051109)

Commanding Officer Recommendation (date):	 (20051114)
SJA review (date):	 (20051206)
Separation Authority (date):	COMMANDING GENERAL, 3D MARINE DIVISION (20051206)
              Basis for discharge directed:	 DUE TO 
              Characterization directed:	
Date Applicant Discharged:	20051208

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:	Service and/or Medical Record:  		Other Records:  

Related to Post-Service Period:  	
	Employment:  			Finances:  			Education: 		
	Health/Medical Records:  		Substance Abuse:			Criminal Records:  	
	Family/Personal Status: 		Community Service:  		References:  		
	
Additional Statements From Applicant:  	From Representative:    
Other Documentation (Describe)  E-mails between applicant’s father and LtCol
News article
Notification of test results for Metropolitan Police Recruit, Honolulu, Hawaii

Pertinent Regulation/Law

A.  The Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 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 92 and 107.

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 to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  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