ex-, USMC
MD07-00961

Current Discharge and Applicant’s Request

Application Received:  20070703 	Characterization Received:  
Narrative Reason:  MISCONDUCT 	Authority:  MARCORSEPMAN 6210.5

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. Did not commit misconduct 
			2. Pre-service waiver improperly considered 
			3. Others received less severe consequences for same offense
			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.

Date:  20080103		Location:  Washington D.C.	 Representation:  

Discussion

Issue 1 ().  There is credible evidence in the record that the Applicant used illegal drugs, including his own statement admitting having done so.  That statement appears credible on its face, and its credibility is strengthened by the Applicant’s subsequent re-affirmation of its truthfulness by pleading guilty under oath to wrongfully using marijuana.  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.  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, and his after-the-fact recantation does not overcome the presumption of regularity attaching to the discharge.  

Issue 2 ().  The evidence of record clearly indicates that the Separation Authority did not consider the Applicant’s enlistment waiver for pre-service drug use on the issue of his characterization of service.  The Applicant’s assertion is not merited.

Issue 3 ().  The Applicant claims that his discharge was inequitable because other, unidentified, servicemembers were punished less harshly for similar misconduct.  First, 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.  Further, and contrary to his claim, the record indicates that of all those identified as illegal drug users during the investigation into the Applicant’s misconduct, he was the only offender for whom his commanding officer recommended leniency, by suspension of discharge.  

Issue 4 ().  The Applicant identified a number of specific factors regarding the quality of his service as separate issues.  The Board determined that these various factors were relevant on the single equity issue as to whether the Applicant’s discharge was consistent with standards of naval discipline.  The Board determined that it was.  As noted above, mandatory processing for separation is required for Marines who abuse illegal drugs and separation under these conditions usually results in characterization of service as under other than honorable conditions.  Such conduct also constitutes a violation of Article 112a of the Uniform Code of Military Justice (UCMJ), an offense for which a punitive discharge is authorized upon conviction at special or general court-martial.  In addition, the Applicant’s service was also marred by nonjudicial punishment for violation of Article 92 of the UCMJ.  The Board found nothing inequitable about the Applicant’s characterization of service.

Issue 5 ().  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety or inequity after a review of Applicant’s case.  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 could 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.  As of this time, the Applicant has not provided any post-service documentation to consider mitigating the misconduct that resulted in the characterization of 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)	20000222 - 20000530  		Active:   	
Period of Service Under Review:
Date of Enlistment: 20000531		Years Contracted:  ; Extension:  		Date of Discharge:  20021029
Length of Service:  02  Yrs  04  Mths  29  Dys		Lost Time:  Days UA:    Days Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  64	MOS:  0351  	Highest Rank:  
Proficiency/Conduct marks (# of occasions):	4.3(6)/4.2(6)	Fitness reports:   
Awards and Decorations (per DD 214):  Rifle , Pistol EX, NDSM, SSDR, Meritorious Mast 

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

20001221:	NJP -- Viol UCMJ Art. 92 – 20001217 underage drinking.
	Awarded - Restr for (14 days); Extra duties (14 days).

20010210:	MARCORSEPMAN 6105 counseling for underage drinking.  Applicant chose not to make a rebuttal.

20020603:	Applicant provided voluntary statement to CID admitting to smoking marijuana.

20020704:	Applicant entered into pretrial agreement with Convening Authority to plead guilty at summary court-martial and waive administrative discharge board.

20020709:	SCM -- Viol UCMJ Art. 112a – Use marijuana on divers occasions 20010601 - 20010701.
	Awarded - RIR (E-3); Confinement (30 days).

Discharge Process

Date Notified:	20020726
Basis for Discharge:	 DUE TO:  
Least Favorable Characterization:	
Commanding Officer’s Intended Recommendation:	

Date Applicant Responded to Notification:		20020726
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			 
	Administrative Board			

20020801:	Substance Abuse Counseling Center:  Reason for visit:  Referred for drug screening.
	Diagnosis:  No diagnosis.  Does not meet criteria for Drug Abuse or Dependence.  Does not wish to remain on active duty.
	Recommendation:  None.

20020904:	MARCORSEPMAN 6105 counseling for illegal drug use.  Applicant chose not to make a rebuttal.

20020916:	Substance Abuse Counseling Center:  Reason for visit:  Referred for re-evaluation.
	Diagnosis:  No diagnosis.
	Recommendation:  Attend Impact course.

Commanding Officer Recommendation (date):	, SUSPENDED FOR 12 MONTHS (20021009)
SJA review (date):	 (20021025)
Separation Authority (date):	CG, MARINE CORPS BASE HAWAII (20021029)
              Basis for discharge directed:	 DUE TO:  
              Characterization directed:	
Date Applicant Discharged:	20021029

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, Articles 92, Failure to obey order or regulation; and 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