ex-, USMC
MD07-00605

Current Discharge and Applicant’s Request

Application Received:  20070330 	           Characterization Received:  
Narrative Reason:  MISCONDUCT 					     Authority:  MARCORSEPMAN 6210.5

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. Characterization not warranted by overall service record
			2.  Injury impaired ability to serve
			3.  Post-service conduct

Decision

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

Date:  20071129		Location:  Washington D.C.	 Representation:  

Discussion

Issue 1 ().  The Board considered that the Applicant’s claims that “there were no aggravating circumstances,” that there “were not enough incidents,” and that his proficiency and conduct marks were “mostly pretty good” to essentially be an equity claim that his discharge was inconsistent with standards of discipline in the Marine Corps.  There is credible evidence in the record that the Applicant used illegal drugs, to include the Applicant’s own admission of guilt.  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 voluntarily chose to accept NJP and waive his administrative discharge board in order to avoid the potential of much more severe punishment, to include a punitive discharge, at special court-martial.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  

Issue 2 ().The Applicant implies that his marijuana use was the result of inability to serve following his motorcycle accident.  The NDRB recognizes that serving in the Marine Corps is challenging, and that the Applicant faced an even greater challenge than the norm.  However, the Board found no evidence in the record to suggest that the Applicant’s decision to use illegal drugs was in any way related to his unfortunate injury.  It must be noted that most Marines, including those seriously wounded in combat, serve honorably and therefore earn their honorable discharges.  In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due.  The NDRB found that the Applicant's service was equitably characterized.
 
Issue 3 ().  The Applicant claims that his discharge is “no longer required” because he is a “law abiding, tax paying citizen” with employment for 2 years.  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 the service.  The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge 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 provided evidence of post-service employment and lack of criminal record since his discharge; however, after a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct which precipitated the 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)	20020723 - 20020804  		Active:   
Period of Service Under Review:
Date of Enlistment: 20020805	Years Contracted:  ; Extension:  	Date of Discharge:  20050624
Length of Service:  02  Yrs  10  Mths  20  Dys	Lost Time:  Days UA:    Days Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  35	MOS:  3533  Highest Rank:  
Proficiency/Conduct marks (# of occasions):	4.6(6)/4.6(6)	Fitness reports:   
Awards and Decorations (per DD 214):  Rifle MM, GWOTSM, NDSM, NUC

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

20020509:	Applicant acknowledged, during enlistment medical examination, pre-service marijuana use (2x).

20020509:	Applicant acknowledged understanding of Marine Corps illegal drug policy.

20040704:	Applicant involved in motorcycle accident, resulting in amputation of right arm.

20050112:	Commanding General, 1st Force Service Support Group, found that Applicant’s injury was incurred in the line of duty and not due to his own misconduct.

20050309:	Supervisor, Medical Boards, Camp Pendleton advised Commanding Officer, Brigade Service Support Group (BSSG) 1, 1st FSSG, that Applicant to appear before a Medical Board for Right upper extremity traumatic amputation.  Anticipated disposition:  referral to Physical Evaluation Board (PEB).
	[Extracted from Applicant’s document submission.]

20050315:	CO, BSSG-1 provided non-medical assessment of Applicant.  Applicant non-deployable due to physical condition and unable to perform duties.  Recommended Applicant not be retained on active duty in Permanent Limited Duty status if found unfit.
	[Extracted from Applicant’s document submission.]

20050429:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample tested positive for THC.

20050503:	Applicant offered “fast track” pretrial agreement (PTA) to accept nonjudicial punishment, plead guilty to violation of UCMJ, Article 112a, and waive administrative discharge board in exchange for convening authority not referring charge to special court-martial.

20050504:	Applicant signed PTA.

20050505:	Convening Authority signed PTA.

20050505:	NJP -- Viol UCMJ Art. 112a - Wrongfully use marijuana.
	Awarded - FOP ($600.00) for (2 months); RIR (E-2); Restr for (60 days).

Discharge Process

Date Notified:	20050503
Basis for Discharge:	 DUE TO:  
Least Favorable Characterization:	
Commanding Officer’s Intended Recommendation:	

Date Applicant Responded to Notification:		20050504
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	Administrative Board			

Commanding Officer Recommendation (date):	 (20050602)
SJA review (date):	 (20050607)
Separation Authority (date):	COMMANDING GENERAL, 1ST FORCE SERVICE SUPPORT GROUP (20050622)
              Basis for discharge directed:	 DUE TO:  
              Characterization directed:	
Date Applicant Discharged:	20050624

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), Paragraph 6210, MISCONDUCT, effective 1 September 2001 until Present.

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, Wrongful use, possession, etc. of controlled substances.

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