ex-, USMC
MD07-00433

Current Discharge and Applicant’s Request

Application Received:  20070215 	        Characterization Received:  
Narrative Reason:  MISCONDUCT 					     Authority:  MARCORSEPMAN 6210.5

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. Enhance employment opportunities
			2. Re-enlist

Decision

By a vote of  the Characterization shall  .	
By a vote of  the Narrative Reason shall  MISCONDUCT.

Date:  20071101  		       		        Location:  Washington D.C.  

Discussion

Issue(s) 1 - 2:   either  which the Board cannot form the basis of relief for the Applicant, or  the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding .  

There is credible evidence in the record to support the factual conclusion that the Applicant did attempt to illegally purchase, introduce, and use steroids in violation of the UCMJ, Article 112a.  The record clearly establishes that all of the Applicant’s procedural rights were scrupulously provided.  There is further credible evidence that the Applicant committed further misconduct during the period his discharge was suspended.  The allegation was thoroughly investigated and, despite the Applicant’s denial at the time, substantiated by a preponderance of the evidence.  The Applicant does not deny this misconduct to this Board, and there is no evidence to indicate that the initial determination was in error.  In addition to the Article 112a offense, for which an under than honorable characterization of service is warranted, the Applicant’s service was also marred by NJP for wrongfully possessing a fraudulent ID card.  The Board found no impropriety or inequity in the Applicant’s discharge.

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, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that  

Summary of Service

Prior Service:
Inactive: USMCR (DEP)	20030826 - 20031214  		Active:   
Period of Service Under Review:
Date of Enlistment: 20031215		Years Contracted:  	Date of Discharge:  20060216
Length of Service:  02  Yrs  02  Mths  02  Dys	Lost Time:  Days UA:    Days Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  42	MOS:  0121  Highest Rank:  
Proficiency/Conduct marks (# of occasions):	4.5/4.2	Fitness reports:   
Awards and Decorations (per DD 214):  HUMANITARIAN SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON, GLOBAL WAR ON TERRORISM SERVICE MEDAL, NATIONAL DEFENSE SERVICE MEDAL, LETTER OF APPRECIATION, RIFLE EXPERT BADGE

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

20050121:	NJP -- Viol UCMJ Art. 134 - Possession of a fraudulent military identification card.
	Awarded - FOP ($339.00) for (1 month); Restr for (14 days); Extra duties (14 days).

20050526:	Substance Abuse evaluation: No pattern of abuse or dependence.  No need for treatment.

20050613:	NJP -- Viol UCMJ Art. 80 - Attempted to use “Sustanon” oil based injectable steroid; Art. 92 - Wrongfully purchased “Sustanon;” Art. 112a - Wrongfully imported 3 ampoules of “Sustanon;” Art. 134 - Conduct prejudicial to the good order and discipline of the Armed Forces.
	Awarded - FOP ($728.00) for (2 months); RIR (E-2); Restr for (45 days); Extra duties (45 days).

Discharge Process

Date Notified:		20050615
Basis for Discharge:		 DUE TO  
Least Favorable Characterization:		
Commanding Officer’s Intended Recommendation:	 
						SUSPENDED ONE YEAR

Date Applicant Responded to Notification:		20050706
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	Administrative Board			

Commanding Officer Recommendation (date):	 (20050623) 							SUSPENDED ONE YEAR
Administrative Board Date:			20051103
	Findings, by preponderance of the evidence:	BY 3-0 VOTE  DUE TO  
						BY 3-0 VOTE SEPARATION  WARRANTED
	Recommendation on Separation:	 	BY 3-0 VOTE 
	Recommendation on Characterization:	BY 3-0 VOTE 

Separation Authority (date):			COMMANDING GENERAL, 3D MARINE DIVISION (20051110)
              Basis for discharge directed:		 DUE TO:  
              Characterization directed:			
						SUSPENDED FOR ONE YEAR

Date Notified of Vacation:				20060120
	Basis for Vacation:			VIOLATION ART 92, UCMJ: UNDERAGE DRINKING

Date Applicant Responded to Vacation Notice:	20050120
Rights Elected at Notification:
	Consult with Counsel			
	Submit Statement(s) (date)			  (20060130)

Commanding Officer Recommendation (date):	VACATE (20060125)
SJA review (date):				 (20060131)
Separation Authority (date):			COMMANDING GENERAL, 3D MARINE DIVISION (20060131)
	Finding:					PREPONDERANCE OF EVIDENCE SUPPORTS MISCONDUCT
	Action:					SUSPENDED DISCHARGE VACATED
Date Applicant Discharged:			20060216

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) 

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.

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