ex-, USMC
MD07-00656

Current Discharge and Applicant’s Request

Application Received:  20070410 	                Characterization Received:  
Narrative Reason:  MISCONDUCT 					     Authority:  MARCORSEPMAN 6210.5

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: DISCHARGED
Applicant’s Issues:	1. Discharge occurred 2 years after incident
			2. Never failed a urinalysis
			3. Ineffective assistance of counsel
			4. Misconduct warranted reprimand, not discharge
			5. Did not sign discharge papers, purported signature forged

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 Applicant contends that in January 1998 “it was brought to [her] attention” an incident involving other Marines having failed a urinalysis “two years prior.”  The record reflects that the Applicant pled guilty, pursuant to her pretrial agreement, in October 1997 to a charge of violating Article 112a of the Uniform Code of Military Justice (UCMJ) on numerous occasions in July, 1996.  The statute of limitations under the UCMJ is 5 years.  The Board found no impropriety or inequity in the time involved between identifying and adjudicating the Applicant’s offense and subsequently administering the procedural and substantive requirements of processing her for discharge.

Issue 2 (). The Applicant was found guilty, pursuant to her own plea voluntarily rendered pursuant to her pretrial agreement offer to so plead in exchange for not adjudicating the charge at special court-martial.  A guilty plea is the strongest form of evidence of guilt.  A positive result on a urinalysis is not required in order to find misconduct.  

Issue 3 ().  The Board found no evidence that Applicant’s counsel was ineffective in representing her.  To the contrary, the Board found that the Applicant successfully, with the assistance of counsel, negotiated a pretrial agreement by which she avoided the potentially more severe consequences of a special court-martial and also avoided a characterization of service as other than honorable, the characterization normally received by Marines found guilty of illegal drug use.  The Applicant’s unsupported allegations do not overcome the presumption of regularity in this case.
 
Issue 4 ().  There is credible evidence in the record that the Applicant used illegal drugs.  Mandatory processing for separation is required for Marines who abuse illegal drugs.  Separation under these conditions usually results in characterization of service under other than honorable conditions.  The Applicant actually received a more favorable characterization of service.  The summary of service clearly documents that misconduct due to drug abuse was the reason the Applicant was discharged.  No other Narrative Reason for Separation could more clearly describe why she was discharged.  A change to the narrative reason or characterization of service on these grounds is unwarranted.
 
Issue 5 ().  The Board was not sure whether the Applicant referred to her acknowledgement of, and response to, the notification of administrative separation processing or to her DD 214.  In either event, or both, the Board could not discern any error.  The documents appeared proper on their face, and the Applicant’s unsupported allegations do not overcome the presumption of regularity in this case.  The Board specifically found that, in light of the Applicant’s favorable characterization of service, she suffered no prejudice as the result of any administrative error that might have occurred in effecting her 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)	19941122 - 19951002  		Active:   	
Period of Service Under Review:
Date of Enlistment: 19951003	Years Contracted:  ; Extension:  	Date of Discharge:  19980320
Length of Service:  02  Yrs  04  Mths  18  Dys	Lost Time:  Days UA:    Days Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  36	MOS:  3361  Highest Rank:  
Proficiency/Conduct marks (# of occasions):	4.5(7)/4.0(7)	Fitness reports:   
Awards and Decorations (per DD 214):  RIFLE MM, NDSM, CERTCOM(3), MERITORIOUS MAST, CERTACH

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

19941122:	Applicant received enlistment waiver for MGD x 3.

19941122:	Applicant certified understanding of Marine Corps policy concerning illegal use of drugs.

19960729:	MARCORSEPMAN 6105 counseling for failure to go, lack of discipline and responsibility, poor judgment and attitude.

19970902:	Applicant offered pretrial agreement (PTA):  Plead guilty at summary court-martial (SCM) in exchange for convening authority withdrawing charge from special court-martial (SPCM) and referring to SCM; waive right to administrative discharge board in exchange for discharge characterization of general (under honorable conditions).

19970909:	Charge preferred against Applicant:  Violation of UCMJ Art 112a.

19970915:	Convening Authority accepts PTA offer.

Illegible:	Charge withdrawn from SPCM, referred to SCM per PTA.

19971002:	SCM -- Viol UCMJ Art. 112a – Numerous occasions btwn 19960701 - 19960731 wrongfully use marijuana.
	Awarded -  FOP ($673.00) for (1 month); RIR (E-1); Hard Labor w/out Confinement (30 days).

19971231:	Applicant advised of opportunity of evaluation and medical diagnosis.  Applicant declined treatment.  Applicant advised of location of VA hospital nearest her home of record.

Discharge Process

Date Notified:	19980115
Basis for Discharge:	 DUE TO:  
Least Favorable Characterization:	
Commanding Officer’s Intended Recommendation:	

Date Applicant Responded to Notification:		19980118
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			  (NONE FOUND IN RECORD)
	Administrative Board			

Commanding Officer Recommendation (date):	NOT FOUND IN RECORD
SJA review (date):	 (illegible)
Separation Authority (date):	COMMANDER, MCRD/WRR SAN DIEGO (19980303)
              Basis for discharge directed:	
              Characterization directed:	
Date Applicant Discharged:	19980320

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.  Marine Corps Separation and Retirement Manual, (MCO P1900.16E), Paragraph 6210, MISCONDUCT, effective 31 Jan 97 until 31 August 2001.

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