ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20080610
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)	20010718 - 20020722  		Active:   

Period of Service Under Review:
Date of Enlistment:  20020723	Period of Enlistment:   Years   Months	Date of Discharge:  20040213
Length of Service:    Years    Months  21  Days	Education Level:  	Age at Enlistment:  	AFQT:  34
MOS:  0341	Highest Rank:  	Fitness Reports:  
Proficiency/Conduct Marks (# of occasions):	  (3) / (3)
Awards and Decorations (per DD 214): Rifle  Pistol   

Periods of CONFINEMENT:  20030926-20031019 (24 days) 
                                                 20031211-20040103 (24 days)

NJP:  
- 20030625:  Article 92 (Failure to obey a lawful order or regulation).
	Article 113 (2 specifications - Sleeping on post during a time of war).
	Awarded:      Suspended:  

- 20040115:	Article 92  (Failure to obey a lawful order or regulation - 2 specifications)
	Article 111 (Physically control a vehicle under the influence of alcohol: BAC 0.10).
	Awarded:     Suspended:  

SCM:  
- 20030926:	Article 92 (Failure to obey a lawful order or regulation).
	Article 112a (Drug abuse, wrongful use of a controlled substance: Cocaine)
	Awarded: CONF-30 days FOP   Suspended:  

- 20031211:	Article 92 (Failure to obey lawful order).
	Awarded: CONF-30 days FOP   Suspended:  

SPCM:	   CC:	

6105 Counseling: 
- 20031020:	For my illegal drug involvement, cocaine usage identified through positive urinalysis confirmed by NAVDRUGLAB Jacksonville, FL.  Conduct of this nature is unacceptable and will not be tolerated.

Types of Documents Submitted/reviewed

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

Types of Documents Submitted/reviewed (cont)

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) 

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 violations of the UCMJ:  Article 92 (Failure to obey lawful order); Article 111 (Drunken or reckless operation of a vehicle); Article 112a (Drug abuse, wrongful use of a controlled substance) and Article 113 (Misbehavior of sentinel or lookout).

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

Applicant’s Issues

1.  Service benefits.
2.  Discharge inequitable due to mitigating circumstances.

Decision

Date:  20090402               	 Location:  Washington D.C.	         Representation:  

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

Discussion

:   either  which the Board cannot form the basis of relief for the Applicant, or  the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum, specifically the paragraph concerning , regarding .

:  ()  .  The Applicant contends his discharge was inequitable because his misconduct was due to mitigating circumstances; specifically medical issues once he returned from combat in Iraq.  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 retention warning, two NJP’s and two SCM’s for violations of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey lawful order); Article 111 (Drunken or reckless operation of a vehicle); Article 112a (Drug abuse, wrongful use of a controlled substance) and Article 113 (Misbehavior of sentinel or lookout, sleeping on post in time of war).  The NDRB advises the Applicant certain serious offenses warrant separation from the service in order to maintain proper order and discipline.  Violation of Article 112a is one such offense requiring mandatory separation regardless of time in service, grade or record of service.  Violations of this policy result in, at a minimum, mandatory processing for an administrative separation which usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial.  The command did not pursue a punitive discharge but opted instead for an administrative discharge based on misconduct as demonstrated by illegal drug use. 

The Applicant received his first NJP on his return trip aboard ship for misconduct that took place during combat operations in Iraq; failing to obey orders and sleeping on post in a time of war, 2 specifications.  Upon return to CONUS, he served the remainder of his punishment (restriction) prior to going on leave.  When the Applicant returned from leave, he tested positive on a drug urinalysis for cocaine, which led to a SCM that included confinement.  In the three months following his release from confinement in mid-October, the Applicant proceeded to be the subject of another NJP and SCM, which again led to 24 more days of confinement.  As mentioned above, the positive drug urinalysis was grounds for separation, but the Applicants continued misconduct prolonged his inevitable discharge from the Marine Corps due to drug abuse.  Although the Applicant may have had legitimate medical issues upon his return from Iraq, it does not mitigate the use of drugs at anytime.  It was noted that besides an annotation of lower back pain caused from falling off a rock there was no mention in the records reviewed of pending medical issues for the Applicant. The Board determined the evidence of medical issues was not sufficient enough to mitigate the illegal use of drugs, nor the other UCMJ violations which led to the Applicant receiving an “Under Other Than Honorable Conditions” characterization an upgrade would be inappropriate.

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 during Board reviews.  Documentation to help support a post service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificate (if applicable); character witness statements; 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 companies, or other financial institutions; attending or completion of higher education (official transcripts) and documentation of a drug free lifestyle.  The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case by case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.

Besides the Applicants statement on the DD Form 293, he provided additional service-related documentation, several character and employment references and congressional correspondence as evidence on his behalf.  The Board applauds the Applicant for seeking help at Cove Forge and his service to the non-profit organization “Kimberly Home.”  However, to warrant an upgrade, the Applicant’s post service 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 the characterization of service received, “Under Other Than Honorable Conditions”, was an appropriate characterization considering the length of service and the UCMJ violations involved, and based on the limited post service documentation provided an upgrade would be inappropriate.

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