ex-, USMC
MD07-00752

Current Discharge and Applicant’s Request

Application Received:  20070507 	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. Others received less severe discharge
			3. Command abused its authority

Decision

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

Date:  20071212		Location:  Washington D.C.	 Representation:  

Discussion

Issue 1 ().  There is credible evidence in the record that the Applicant used illegal drugs, including, most significantly, his own voluntary admission of guilt at summary court-martial.  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 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.  Illegal drug use is conduct that constitutes a significant departure from the conduct expected of members of the naval service.  The Applicant’s characterization of service is entirely appropriate.

Issue 2 ().  The Applicant contends that his discharge was inequitable because other servicemembers were punished less harshly for similar misconduct.  The Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service.  Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Marine Corps.  The uncontroverted evidence demonstrates that the Applicant used illegal drugs in violation of Article 112a of the Uniform Code of Military Justice, a serious offense for which a punitive discharged is authorized upon conviction at special or general court-martial.  As noted above, discharge in such cases usually results in a characterization of service as under other than honorable conditions.  

Issue 3 ().  The Applicant does not specify how his command allegedly abused its authority in taking action against him.  The only possible issue the Board discerned in this regard stemmed from the fact that the Applicant was apparently held beyond his contractual end of active obligated service (EAS) for the purpose of his summary court-martial and subsequent administrative separation processing.  Normally, Marines undergoing administrative separation processing will not be involuntarily retained on active duty past their release date.  However, Marines may be retained on active duty when jurisdiction has attached by commencement of action with a view to trial.  Personnel may be retained if subject to information of a discreditory nature that may lead to a preliminary inquiry or the assumption of jurisdiction.  The report of the Applicant’s positive urinalysis result was sufficient for such jurisdiction to attach.  The Applicant voluntarily agreed to the subsequent actions, i.e. summary court-martial and administrative discharge, in order to avoid the prospects of more severe consequences at a special court-martial.  The Board found no impropriety in his getting the benefit his own voluntary bargain.    

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)	20000927 - 20001112  		Active:   	
Period of Service Under Review:
Date of Enlistment: 20001113			Years Contracted:  ; Extension:  	Date of Discharge:  20050421
Length of Service:  04  Yrs  05  Mths  09  Dys			Lost Time:  Days UA:    Days Confined: 
Education Level:  	Age at Enlistment:  	AFQT:  64	MOS:  0451  	Highest Rank:  
Proficiency/Conduct marks (# of occasions):	4.4(11)/4.2(11)			Fitness reports:   
Awards and Decorations (per DD 214):  GCM, GWOTSM, GWOTEM, SSDR, NDSM, PUC, MM  

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

20040831:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 20040825, tested positive for (cocaine).

20041109:	Applicant entered into pretrial agreement to plead guilty to violation of Article 112a, UCMJ and waive administrative discharge board in exchange for referral of charge to summary court-martial vice special court-martial.

20041112:	Date of Applicant’s initial contract EAS.

20041206:	SCM -- Viol UCMJ Art. 112a – Wrongful use of cocaine on or about 20040819.
	Awarded -  FOP (795.00) for (1 month); RIR (E-1); Confinement (30 days).  
	CA action, 20041206: Approved, except confinement.

20050222:	Applicant refused Medical Officer’s Evaluation.

Discharge Process

Date Notified:	20050323
Basis for Discharge:	 DUE TO:  
	
Least Favorable Characterization:	
Commanding Officer’s Intended Recommendation:	

Date Applicant Responded to Notification:		20050323
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	Administrative Board			

Commanding Officer Recommendation (date):	 (20050324)
SJA review (date):	 (20050411)
Separation Authority (date):	COMMANDING GENERAL, I MARINE EXPEDITIONARY FORCE (20050413)
              Basis for discharge directed:	 DUE TO:  
              Characterization directed:	
Date Applicant Discharged:	20050421

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 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.

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