ex-, USMC
MD07-00568

Current Discharge and Applicant’s Request

Application Received:  20070327	       Characterization Received:  
Narrative Reason:  MISCONDUCT 		  		           Authority:  MARCORSEPMAN PAR 6210.5

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. Desire to re-enlist
			2. Misconduct caused by illness (anxiety).

Decision

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

Date:  20071120		Location:  Washington D.C.	 Representation:  

Discussion

Issue(s) 1:   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 .  

Issue 2 ().  While the Applicant asserted at the time that he did not remember using any illegal drugs, there is credible evidence in the record that he did.  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 Applicant explicitly noted that this would be the likely outcome in his pretrial agreement offer.  The Board noted that the Applicant did appear to be dealing with significant personal relationship issues in the period leading up to his marijuana use; however, there is no evidence in the record to suggest that Applicant was not responsible for his misconduct or that he should not be held accountable for his actions.  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  

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

	Block 4a, Grade, Rate or Rank, should read: “Lance Corporal”
	Block 4b, Pay Grade, should read: “E-3”
	
The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate. 

Summary of Service

Prior Service:
Inactive: USMCR (DEP)	19991008 - 19991128  		Active:   	19991129 - 20031001  
Period of Service Under Review:
Date of Enlistment: 20031002		Years Contracted:  ; Extension:  	Date of Discharge:  20050713
Length of Service:  01  Yrs  09  Mths  11  Dys		Lost Time:  Days UA:    Days Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  36	MOS:  0811  Highest Rank:  
Proficiency/Conduct marks (# of occasions):		Fitness reports:   
Awards and Decorations (per DD 214):  GCM, GWOTSM, NDSM, SSDR, NUC, KCM, NATO, Rifle SS, Pistol SS

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

20031003:	Reenlisted this date for a term of 4 years and 2 weeks.

20040802:	MARCORSEPMAN 6105 counseling regarding “several” UAs from appointed place of duty.

20040916:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 20040913, tested positive for (THC).

20041013:	Charge preferred against Applicant for violation of UCMJ, Article 112a, Wrongfully use marijuana on or about 20040908.

20041020:	Charge referred to Special Court-Martial.

20050223:	Applicant submitted pretrial agreement (PTA) offering to plead guilty to charge at summary court-martial and waive administrative discharge board in exchange for Convening Authority withdrawing charge from special court-martial.

20050309:	Convening Authority accepts PTA.

20050316:	Charge withdrawn from Special Court-Martial.

20050403:	Applicant admitted to Abuse Treatment Facility, Norfolk, Virginia for 28 days.
	[Extracted from CO recommendation letter dated 20050411.]

20050511:	SCM -- Viol UCMJ Art. 112a - Wrongfully use marijuana on or about 20040908.
	Awarded -  RIR (E-4); Restr (60 days).

Discharge Process

Date Notified:	20050318
Basis for Discharge:	 DUE TO:  
	
Least Favorable Characterization:	
Commanding Officer’s Intended Recommendation:	

Date Applicant Responded to Notification:		20050331
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			 (20050406)
	Administrative Board			

Commanding Officer Recommendation (date):	 (20050411)
SJA review (date):	*
Separation Authority (date):	COMMANDING GENERAL (20050617)
              Basis for discharge directed:	 DUE TO:  
              Characterization directed:	
Date Applicant Discharged:	20050713

*While not found in record, the Separation Authority specifically referred to the SJA review in his action dated 20050617.

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)  Letter from N. M. C_, MD Staff Psychiatrist 

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.

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