ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20080702
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)  20000414 - 2000425  		Active:  

Period of Service Under Review:
Date of Enlistment:  20000426	Period of Enlistment:   Years   Months	Date of Discharge:  20010101
Length of Service:    Years    Months   06  Days	  Education Level:               Age at Enlistment:  23
AFQT:  51	MOS:  0800	Highest Rank:  	Fitness Reports:  
Proficiency/Conduct Marks (# of occasions):	  () / ()
Awards and Decorations (per DD 214):  Rifle  Pistol 

Periods of UA/CONF:  20000820-20000831

NJP:  
- 20000913:  Article 86 (UA)
                     Awarded:   Suspended:    

- 20001023:  Article 86 (UA)
                     Article 92 (Failure to obey a lawful order)
                     Article 112a (Drug use, wrongful use of marijuana)
                     Awarded:     Suspended:  

SCM:      SPCM:      CC:  

6105 Counseling:  
- 20000912:  For UA

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):    
	- Letter from Congressman G., 5th District NJ
	- Unsigned letter from Under Sherriff A. U., Bergen County Sherriff’s Office 
	- Letter from the Mayor of Old Tappen, NJ, Mr. V. P.
	- Letter from E. K., Elks Exalted Ruler 
	- Letter from Ms S. P., Chaperone/Special Olympic Assist Coach

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

Applicant’s Issues

1.  Desires to reenlist in the NJ National Guard.
2.  Young and immature at time of misconduct.
3.  Accepted discharge without proper legal council.

Decision

Date:  20081204		Location:  Washington D.C.	 Representation:  

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

Discussion

:  ()  .  The Applicant desires to enlist in the New Jersey National Guard to serve his country during a time of war.   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 s, regarding .

:  ()  .  The Applicant contends his youth and immaturity contributed to his misconduct; he is asking for a second chance to serve his country.  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 retention warning and 2 NJP’s for violations of the Uniform Code of Military Justice (UCMJ):  Article 86 (UA), Article 92 (Failure to obey an order or regulation), and Article 112a (Drug use).  The Applicant’s tested positive for drug use on two separate drug tests, one for marijuana and one for cocaine.  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 or grade.  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.  Illegal drug use cannot be tolerated by any member of the Marine Corps regardless of grade or time in service.  In accordance with Marine Corps policy, all Marines (regardless of pay grade) are processed for administrative separation by reason of misconduct, due to drug abuse on the first offense.  The command did not refer the Applicant for a court martial but opted instead for an administrative discharge. 

While the Applicant may feel his youth and immaturity were the underlying cause of his misconduct, the record clearly reflects his willful and repeated misconduct demonstrated he was unfit for further military service.  It should be noted the Applicant was 23 years old at the time of his enlistment, 5 years older than the average recruit.  Additionally, he was granted a prior service drug use waiver for use of illegal drugs before he jointed the military and upon enlistment he acknowledged he understood the USMC policy on use of illegal drugs, yet he still choose on at least two separate occasions to use illegal drugs.  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 Applicant is asking for an “Honorable” discharge.  When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under “Honorable” conditions.  An “Under Other than Honorable Conditions” is appropriate when the basis for separation is commission or omission of an act that constitutes a significant departure from the conduct expected of a service member.   The Board determined the Applicant’s awarded discharge characterization of “Under Other Than Honorable Conditions” was appropriate and an upgrade would be inappropriate. 

:  ()  .  The Applicant claims he never saw the positive urinalysis test result for marijuana and signed his discharge without council.  The Applicant’s service record contains a copy of a “Specimen Custody Document – Drug Testing” report dated 18 October 2000 which shows the Applicant had a positive urinalysis for cocaine and a “Patient Lab Inquiry” for a urinalysis conducted on the Applicant dated 25 October 2000 which showed a positive result for marijuana.  On 14 November 2000, the Applicant initialed and signed his Acknowledgement of Rights regarding his separation proceedings in which he stated he understood he was being processed for discharge due to Drug Abuse and what the consequences of this discharge were.  He consulted with a lawyer and waived his rights to have a hearing before an administrative discharge board.  The Applicant did not provide any documentation or statements from witnesses to support his claim he accepted the results of the positive urinalysis and the administrative discharge without proper knowledge or council and from the above facts which contradict the Applicant’s claim it was determined his contention is without merit.  The Board determined the awarded discharge characterization was appropriate and 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 

Pertinent Regulation/Law

A.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 January 1997 until 31 August 2001.

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.

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 or for any basis wherein an Other Than Honorable Discharge is authorized, 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