ex-LCpl, USMC

Current Discharge and Applicant’s Request

Application Received:  20080626
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) 19961121 - 19970112  		Active:  

Period of Service Under Review:
Date of Enlistment: 19970113	Period of Enlistment:   Years   Months	Date of Discharge:  20000131
Length of Service:    Years    Months  19  Days	   Education Level:  	Age at Enlistment:  	AFQT:  80
MOS:  0121	Highest Rank:  	Fitness Reports:  
Proficiency/Conduct Marks (# of occasions):	   () /  ()
Awards and Decorations (per DD 214):  Rifle  Pistol   

Periods of UA/CONF:  

NJPs:  
19990727:  Article 86 (Drug abuse), wrongfully used marijuana.
                   Awarded:      Suspended:   

6105 Counseling:  

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):    
	- Extensive documentation of service, discharge, references, regulations and statements.

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

Applicant’s Issues

1.  Urinalysis was Command Directed, therefore not allowed to be used in characterization of discharge or for punishment.
2.  Discharge was improper because it was based on Command Directed urinalysis.
3.  NJP was based upon improperly based on Command Directed urinalysis.
4.  Discharge characterization was improper because it was based on Command Directed urinalysis.
5.  Positive urinalysis was the result of cooperation with NCIS in drug investigation.
6.  Should have been promoted to Corporal.

Decision

Date:  20080925		Location:  Washington D.C.	 Representation:  

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

Discussion

:  ()  .  The Applicant contends his discharge, characterization of service, and punishment awarded at NJP, were the result of his command’s erroneous use of a Command Directed urinalysis result.  Specifically, the use of  “Command Directed” urinalysis results is not allowed to be used for punishment or in characterizing service for a discharge.  The NDRB is not authorized to take any action regarding NJP findings or punishment (Issue 3), but it is included here for clarity.  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 1 non-judicial punishment for violation of the Uniform Code of Military Justice, Article 112a (Drug abuse), as confirmed by NAVDRUGLAB San Diego, CA 052127Z Oct 98.  This is considered a serious offense and is punishable by a punitive discharge and confinement if adjudicated by a special or general court-martial.  The command did not pursue a punitive discharge but opted instead for an administrative discharge.  

The Applicant submitted a remarkably well-researched summary of events surrounding his discharge.  However, the Applicant appears to understand that a urinalysis given upon the return from unauthorized absence can only be classified as a “Command Directed” exam.  The Applicant cites paragraph 3.3.6 of DoDD 1010.1 as the basis for this understanding.  However, paragraph 3.3.1 of the same directive describes the use of “Inspection” urinalyses.  “During an inspection or examination of all or part of a unit conducted in accordance with Military Rule of Evidence 313…”  Rule 313 is cited, in part, below, for the edification of the Applicant.

An “inspection” is an examination of the whole or part of a unit, organization, installation, vessel, aircraft, or vehicle, including an examination conducted at entrance and exit point, conducted as an incident of command the primary purpose of which is to determine and to ensure the security, military fitness, or good order and discipline of the unit, organization, installation, vessel, aircraft, or vehicle…

A Command’s policy to administer a urinalysis upon return from leave or unauthorized absence clearly falls within this provision.  The record of evidence shows the command selected the test basis “IU” for the applicant’s urinalysis.  “IU” is used when an entire unit, sub-unit, or identified segment of a unit is tested. The Board determined the Applicant’s command had valid reason to believe the Applicant had been UA when he returned without leave papers in his possession, and was therefore entitled to require a urinalysis.  Notwithstanding the use of the phrase “Command Directed” in discussion and testimony during the Applicant’s Administrative Separation Board, the urinalysis the Applicant failed was properly administered as a unit inspection.  The Board determined an upgrade would be inappropriate.

Issue 5:  (Equity) RELIEF NOT WARRANTED.  The Applicant contends his positive result on a urinalysis was the result of his cooperation with the Naval Criminal Investigative Service (NCIS) and his need to associate with known drug users.  The 

Applicant’s command was aware of the Applicant’s involvement with NCIS, aware of the reason for the Applicant’s status as a “Cooperating Witness”, and was best able to judge the validity of the Applicant’s claims.  The Board acknowledges the fact the 
Applicant worked with NCIS to help in breaking up a suspected drug ring.  However, working with NCIS does not mitigate the fact the Applicant used illegal drugs.  Additionally, there was no documentation in the record nor was any provided which 
authorized the Applicant to use illegal drugs as part of his duties in working with NCIS.  The Board accepts the results of the Applicant’s Administrative Discharge Board, Commanding Officer, and Commanding General and rejects the Applicant’s contention.  The Board determined an upgrade would be inappropriate.

It was also noted during the Board review the Applicant tested positive for both Methamphetamine (reference NAVDRUGLAB San Diego CA 192034Z Feb 98) and Cocaine (reference NAVDRUGLAB San Diego CA 102239Z Dec 98) but was never charged or prosecuted for these offenses.  It was noted on a letter from the Military Justice Officer, MCAS Miramar, 5800 AR dated 2 December 1999 to the CO, Navy Drug Lab requesting the message traffic for the above mentioned drug lab results the Applicant was pending an administrative discharge board.  The above was noted by the NDRB but not considered in their decision as the Applicant was not charged with these violations.   

Issue 6:  The NDRB has no authority to make changes to the Applicant’s record in these matters.  The Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 to request these changes.

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 

Pertinent Regulation/Law

A.  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.

D.  Department of Defense Directive 1010.1, Military Personnel Drug Abuse Testing Program, Para 3.3, Circumstances for Urinalysis Testing.

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