ex-, USMC
MD07-00655

Current Discharge and Applicant’s Request

Application Received:  20070417 	
Characterization Received:   
Narrative Reason:  Misconduct – Drug Abuse (admin discharge board required but waived)
Authority:  MARCORSEPMAN 6210.5

Applicant’s Request:	Characterization change to:   or 
			Narrative Reason change to: 
Applicant’s Issues:	1. Restoration of pay, allowances, entitlements, rights and privileges
			2. Narrative reason and characterization of service are not proper per service regulations 
			3. Separation Code not supported by evidence 
			4. Discharge not warranted by overall service record 
			5. Post service conduct

Decision

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  Misconduct – Drug Abuse (admin discharge board required but waived)

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

Discussion

Issue 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 ().The Board determined that the Applicant was discharged on the basis of misconduct due to drug abuse with a characterization of service as under other than honorable conditions.  The Board specifically found that the record contained the factual and legal grounds for the discharge.  Specifically, the Board found that the Applicant did commit misconduct due to drug abuse, that he was properly notified of the proposed administrative separation, that he properly acknowledged and responded to that notification, that the proceedings were properly reviewed for sufficiency in law and fact, and that the Separation Authority properly determined that the basis for discharge existed and assigned an appropriate characterization of service. The Applicant argues, in regard to his DD 214, that the Narrative Reason for his discharge is incorrect and that the indicated character of service is not an authorized characterization.  While the Board does not have the authority to directly change a servicemember’s DD 214, it does recommend appropriate administrative changes when warranted.  The Board did not concur with the Applicant regarding the Narrative Reason.  The Board concluded that the Applicant’s Narrative Reason was proper according to Marine Corps Order P1900.16D, the applicable authority in effect at the time of the Applicant’s discharge.  The Board did concur with the Applicant that the character of service as reflected on his DD 214 was incorrect, and will make the recommendation for change as indicated below.

Issue 3 ().  As noted above, while the Board does not have the authority to directly change a servicemember’s DD 214, it does recommend appropriate administrative changes when warranted.  The Board found that the evidence clearly and unambiguously demonstrated that the Applicant waived his administrative discharge board.  No change to the Applicant’s separation code is warranted.

Issue 4 ().  The Applicant “admits his record may not have been without blemishes, but his good service prior to…far outweighs the one negative aspect of his military service.”  Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Naval service in order to maintain proper order and discipline.  The Applicant’s service is marred by a summary court-martial conviction for violation of Article 112a of the Uniform Code of Military Justice, a serious offense for which a punitive discharge is authorized upon conviction at special or general court-martial.  Mandatory processing for separation is required for Marines who abuse illegal drugs.  Separation under these conditions normally results in characterization of service as under other than honorable conditions.  The Board found no indication in the record that the Applicant was treated improperly or inequitably, or was not responsible for his conduct, or that he should not be held accountable for his actions.  

Issue 5 (). 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 credible information in support of his contention that he has been, post-service, an honest, hard-working contributing member of society in an important civic field of endeavor.  The Board carefully considered what weight to give that post-service evidence in light of the serious misconduct for which the Applicant was discharged.  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 sufficient and/or of a type to mitigate the misconduct 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  

Administrative Corrections to the Applicant’s DD 214

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

	  “UNDER OTHER THAN HONORABLE CONDITIONS”
	
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)	19940120 - 19940404  		Active:   	
Period of Service Under Review:
Date of Enlistment: 19940405	Years Contracted:  ; Extension:  	Date of Discharge:  19950511
Length of Service:  01  Yrs  01  Mths  09  Dys	Lost Time:  Days UA:    Days Confined:  13 (per ServRcd page 3)
Education Level:  	Age at Enlistment:  	AFQT:  64	MOS:  0311  Highest Rank:  
Proficiency/Conduct marks (# of occasions):	4.3(2)/4.3(2)	Fitness reports:   
Awards and Decorations (per DD 214):  RIFLE MM, NDSM

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

19940120:	Applicant certified understanding of Marine Corps policy concerning illegal use of drugs.

19950222:	SCM -- Viol UCMJ Art. 112a – Abt 19950206 wrongfully use marijuana.
	Awarded -  FOP ($250.00) for (1 months); RIR (E-1); Confinement (15 days).

19950411:	Medical Record:  Reason for visit:  Substance Abuse Counselor and Medical Officer evaluation.
	Diagnosis:  Alcohol dependent and THC abuse.
	Recommendation: VA Hospital Level III inpatient treatment.       

Discharge Process

Date Notified:	19950415
Basis for Discharge:	 DUE TO:  
Least Favorable Characterization:	
Commanding Officer’s Intended Recommendation:	

Date Applicant Responded to Notification:		19950415
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			  
	Administrative Board			

Commanding Officer Recommendation (date):	 (19950420)
SJA review (date):	 (19950503)
Separation Authority (date):	COMMANDER, MCB, MCCDC (19950504)
              Basis for discharge directed:	 DUE TO:  
              Characterization directed:	
Date Applicant Discharged:	19950511

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)  Standard Form 180; Applicant ltr to CO, MarBks 8&I, dtd 20060501; Maj W_ ltr to Applicant dtd 20060619; Excerpts from MARCORSEPMAN; Certification as EMT, etc; Ltrs of appreciation; Commendations for valor; Life saving awards; Newspaper articles; Copy of September 2005 “Direct Line”; Photos

Pertinent Regulation/Law

A.  Marine Corps Separation and Retirement Manual (MCO P1900.16D), Paragraph 6210, Misconduct, effective 27 Jun 89 until 17 Aug 95.

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