ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20080131
Characterization of Service Received: 
Narrative Reason for Discharge: 
Authority for Discharge: MARCORSEPMAN 

Applicant’s Request: Characterization change to:  
		      Narrative Reason change to: 

Summary of Service

Prior Service:
Inactive: USMCR (DEP)	20001214 - 20010115  		Active:   

Period of Service Under Review:
Date of Enlistment: 20010116	Period of Enlistment:   Years   Months	Date of Discharge:  20030423
Length of Service:    Yrs    Mths  08  Dys	Education Level:  	Age at Enlistment:  	AFQT:  42
MOS:  6114	Highest Rank:  	Fitness Reports:  
Proficiency/Conduct Marks (# of occasions):	  () /  ()
Awards and Decorations (per DD 214):  Rifle  Pistol   

Periods of UA/CONF:  

NJPs:	
20030110: Article 112a (Wrongfully use cocaine).
                  Awarded:   .  Susp - .

Types of Documents Submitted/reviewed

Related to Military Service:	DD 214:  	Service and/or Medical Record:  		Other Records:  

Related to Post-Service Period:	
	Employment:			Finances:			Education/Training:	
	Health/Medical Records:		Substance Abuse:			Criminal Records:	
	Family/Personal Status: 		Community Service:  		References:  		
Additional Statements From Applicant:  		From Representation:  		From Member of Congress:  
Other Documentation (Describe):   Veterans Benefits in Brief
Form for Disabled American Veterans

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.

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1.  Feels discharge is unfair due to isolated incident.
2.  Drug use was due to untreated medical condition.
3.  Misconduct was due to youth and immaturity.
4.  Post service conduct.

Decision

Date:  2008904		Location:  Washington D.C.	 Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  MISCONDUT (DRUG ABUSE).

Discussion

: ()  RELIEF NOT WARRANTED.  The Applicant stated his discharge was based on one isolated incident and not indicative of the character of his entire service.  For the edification of the Applicant, despite a service member’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.  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.  The Applicant’s record of service was marred by one non-judicial punishment for a violation of the Uniform Code of Military Justice (UCMJ), Article 112a, wrongful use of cocaine.  Illegal drug use cannot be tolerated by any member of the Marine Crops regardless of grade or time in service.  Violations of Article 112a are considered serious in nature and could have resulted in a punitive discharge and confinement of up to 5 years if adjudicated by a special or general-court martial.  The command did not pursue a punitive discharge but opted instead to administratively discharge the Applicant.  

A review of the Applicant’s service record indicated during enlistment he stated in writing he used marijuana only 4 times prior to entry in to the USMC.  However, on his Medical Consultation Sheet, dated 13 January 2003, he admitted he had smoked marijuana daily since he was 14 years old and had used MDMA (Ecstasy), LSD, Cocaine, and Ketemine between the ages of 17 to 20 years old.  Additionally, he admitted to smoking marijuana once and snorting cocaine six times while on active duty.  In the same report, his doctor states the Applicant is cocaine dependent and recommends treatment; the Applicant refused substance abuse treatment on 13 January 2003.  

The Applicant should understand an administrative discharge is not punishment.  The decision to administratively discharge a service member is made independently of, and does not require adjudication at, a court-martial or non-judicial punishment.  The characterization of service is a description of the total service provided during the member’s enlistment.  When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable.  An “Under Other Than Honorable Conditions” discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  Given the severity of the Applicant’s misconduct, the Board determined an upgrade of his discharge would be inappropriate.  

 : ()  .    The Applicant claims he was depressed, did not receive adequate medical treatment, and he used drugs as a form of self-medication.   A review of the medical records indicated during February 2002 the Applicant was diagnosed with mild depression by a military doctor.  He was prescribed Zyban to treat the symptoms, but he did not follow the recommended dosage and frequency of use schedule because he said it was “not working.”  Records indicated he stopped taking the drug at day 3.  

Based on the above self-reported history of illegal drug use found in Issue 1, the Applicant’s use of illegal drugs by far pre-dates his claim that he used it “one time to treat his depression.”   The Applicant was directed by his military medical doctor to contact the Camp Foster Counseling Center so he could be seen by a Mental Health Specialist.  The doctor also recommended the Applicant start taking Effexor XR.  The doctor indicated he would monitor him for side effects and to return in a week for a 

follow-up to see if the drug was effective or if the dosage needed to be modified.   There was no record the Applicant went for further counseling or started taking the new drug as prescribed by the doctor.  It was clearly the Applicant’s responsibility to either take the prescribed medications and attend recommended counseling or discuss alternative options with his medical doctor.  Failure to do so on his part does not make the USMC liable for his subsequent health issues.  The Board determined that based on the above, an upgrade would be inappropriate.

: ()  .  The Applicant contends his youth and immaturity mitigates his misconduct.  While he may feel this was the underlying cause of his misconduct, the evidence of record does not demonstrate the Applicant was not responsible for his conduct or that he should not be held accountable for his actions due to youth or immaturity.  The Board determined an upgrade would be inappropriate.

Issue 4: (Equity)  RELIEF NOT WARRANTED.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service.   Outstanding post-service conduct, 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, is considered.  Supporting documentation to help support a post service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card company’s or other financial institutions; documentation of a drug free lifestyle; and character witness statements.   The Applicant should be aware completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service conduct mitigates the reason for the characterization of discharge.   

The Applicant did not provide sufficient documentation of post-service accomplishments to mitigate the misconduct that resulted in the discharge characterization; he submitted one letter of reference and the names of four other potential character references.  He states he went through a resident treatment program, attended Narcotics Anonymous meetings as well as other programs and has a job, but offers no documentation to substantiate his claims.  The Applicant's efforts need to be more encompassing.  The Applicant could have produced additional evidence as stated in the above paragraph with the full understanding completion of these items alone does not guarantee an upgrade.  The Board determined based on the documentation provided an upgrade would be inappropriate and the characterization of service received, “Under Other Than Honorable Conditions”, was an appropriate characterization considering the time served, the seriousness of the UCMJ violations involved and the Applicant’s refusal to accept treatment or help from the military.  The Board determined an upgrade was not warranted based on post service conduct or accomplishments.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service,  Record, Discharge Process and evidence submitted by the Applicant, the Board found 

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 or is referred to a court-martial 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 other medical related reasons.”  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 special 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.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

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