ex-, USMC
MD07-00821

Current Discharge and Applicant’s Request

Application Received:  20070523 	Characterization Received:  
Narrative Reason:  MISCONDUCT 	Authority:  MARCORSEPMAN 6210.5

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. Denied administrative discharge board
			2. Discharge not warranted by overall service record

Decision

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

Date:  20071220		Location:  Washington D.C.	 Representation:  

Discussion

Issue 1 (). The Applicant alleges that he was denied his right to an administrative discharge board.  As evidence, he submits a copy of what purports to be his undated “Acknowledgement of Rights to be Exercised or Waived in Connection with Discharge Proceedings (Board Case),” submitted in response to his notification of proposed administrative separation.  The copy submitted by Applicant appears to indicate in paragraph 4.b. that Applicant initialed on the line next to the choice “do NOT) request a hearing before an Administrative Separation Board,” put a line through those initials, initialed above the lined over initials, initialed on the line before, and circled, the word “do.”  If taken at face value, the Board determined that the document reasonably indicated that the Applicant initially waived his right to an administrative discharge board, but then changed his mind and annotated his election of an administration discharge board.  In contrast to the Applicant’s submission however, the Board found in the Applicant’s electronic service record a copy of the same document that contained the Applicant’s initials on the line next to the choice “do NOT” with no other annotations, corrections or writing.  The Staff Judge Advocate advised the Separation Authority that the Applicant had waived his right, apparently having reviewed the copy of the document reflected in the service record.  The Board carefully compared the 2 copies and was completely satisfied that they were copies of one original, with the only difference between them being as noted above.  The Board could not determine when the annotations on the Applicant’s copy were made; however, the Board found it extremely unlikely that the Applicant submitted his election of rights only to have someone unknown, in some manner unknown, for some reason unknown, unlawfully edit the document to remove the Applicant’s election of an administrative discharge board and deceive the Separation Authority into taking action on an inaccurate submission. The Board found no error on this issue.

Issue 2 ().  The Applicant essentially claims that his service as a whole, and in particular subsequent to his illegal drug use, demonstrated rehabilitative potential and honorable service.  Mandatory processing for separation is required for Marines who abuse illegal drugs.  Separation under these conditions usually results in characterization of service as under other than honorable conditions.  While the Board recognizes and commends the Applicant for his service in Iraq, it also noted that his drug use occurred immediately prior to his activation for that deployment.  The Board did not presume that the Applicant used illegal drugs in order to avoid the deployment, but it did determine that, under the circumstances, such a conclusion was as reasonable, if not more so, than the one for which the Applicant argues.  In light of all the facts and circumstances, and especially given the nature and seriousness of his offense, the Board did not find the Applicant’s discharge improper or inequitable. 

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: NONE				Active:  
Period of Service Under Review:
Date of Enlistment: 20000920		Years Contracted:   (6 SMCR and 2 IRR)		Date of Discharge:  20060315
Length of Service:  Active:  01  Yrs  05  Mths  12  Dys	Inactive:  04  Yrs  00  Mths  10  Dys	Lost Time:  NONEEducation Level:  	Age at Enlistment:  	AFQT:  50	MOS:  3531  Highest Rank:  		Proficiency/Conduct marks (# of occasions):	4.4(9)/4.3(9)	
Awards and Decorations (per DD 214):  GWOTEM, GWOTSM, SSDR, AFRM WITH “M” DEVICE, LOA 

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

20010710:	Applicant reported for initial tour of active duty for training.

20011219:	Applicant released from initial tour of active duty for training with an Honorable characterization of service by reason of completion of required active service (USMCR) IADT.

20011220:	Joined for duty with Det A, MWSS-472, MWSG-47, 4th MAW, Wyoming, PA.

20040518:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 20040514, tested positive for THC.

20040601:	Applicant activated in support of Operation Iraqi Freedom.

20040709:	MARCORSEPMAN 6105 counseling for substance abuse.

20040723:	NJP -- Viol UCMJ Art. 112a - Wrongfully use marijuana btwn abt 20040501 - 20040514.
	Awarded - FOP ($668.00) for (2 months); RIR (E-2); Restr for (30 days); Extra duties (30 days).

20040816:	Applicant deployed to Iraq.

20050211:	Applicant re-deployed to CONUS.

Discharge Process

Date Notified:	20050308
Basis for Discharge:	 DUE TO:  
Least Favorable Characterization:	
Commanding Officer’s Intended Recommendation:	

Date Applicant Responded to Notification:		20050310
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			  (20050315)
	Administrative Board			

20050531:	Applicant released from active duty with an Honorable characterization of service by reason of completion of required active service (USMCR) IADT.  Not a final discharge.

Commanding Officer Recommendation (date):	 (20051113) [Extracted from CG’s ltr dated 20060307]
SJA review (date):	 (20060103)
Separation Authority (date):	CG, 4th MARINE AIRCRAFT WING, NEW ORLEANS (20060307)
              Basis for discharge directed:	 DUE TO 
              Characterization directed:	
Date Applicant Discharged:	20060315

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 1 September 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