ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20080811
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)	20020827 - 20030727  		Active:   

Period of Service Under Review:
Date of Enlistment: 20030728	Period of Enlistment:   Years   Months	Date of Discharge:  20070126
Length of Service:    Years    Months  29  Days	 Education Level:  	Age at Enlistment:  
AFQT:  43	MOS:  0311	Highest Rank:  	Fitness Reports:  
Proficiency/Conduct Marks (# of occasions):		 () /  ()
Awards and Decorations (per DD 214):  Rifle    ICM  W/1 STAR    LoA

Periods of UA/CONF:      NJP:      SPCM:      CC:  

SCM:  
- 20060728:  Article 112a (Drug use, wrongfully use marijuana).
                     Sentence:   (20060729-20060821, 24 days)  

6105 Counseling:  
- 20060707:  For my illegal drug-related incident on 20060705.  Specifically, THC usage identified through urinalysis
                     and confirmed by NAVDRUGLAB message F02002089.

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):  

	- Applicant’s letter from Department of Veterans Affairs

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

Applicant’s Issues

1.  Education opportunities.
2.  No opportunity to state case for retention in the Marine Corps.
3.  Isolated incident.
4.  Record of service.

Decision

Date:  20081121		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 he did not have the opportunity to state his case for retention in the Marine Corps during proceedings following his positive urinalysis.  The record of evidence shows the Applicant did not object to a trial by summary court-martial and was not represented by counsel at his summary court-martial.  Furthermore, the Applicant willingly waived his rights to an administrative separation board and to submit a written statement to the separation authority, as indicated on his letter acknowledging his rights during separation proceedings dated 27 July, 2006.   The NDRB rejects the Applicant’s contention his discharge was inequitable due to a lack of opportunity to present his case for retention.  Had the Applicant desired to make a case for retention in the Marine Corps he could have included a written statement or requested an administrative separation board.  The NDRB determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate based on this Issue. 

:  ()  .  The Applicant contends he is entitled to a discharge upgrade because his misconduct was an isolated incident in an otherwise excellent record of service.  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 a SCM for violation of the Uniform Code of Military Justice (UCMJ): Article 112a (Drug use, wrongful use of a controlled substance). 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.  The command did not refer the Applicant for a punitive discharge but instead opted for an administrative discharge. 

The Applicant has requested an upgrade to his discharge characterization to “Honorable”.  When the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under “Honorable” conditions.   A “General (Under Honorable Conditions)” is appropriate if the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance outweighs positive aspects of the 
member’s military record.  An “Under Other Than Honorable” conditions discharge is appropriate when the basis for separation is commission or omission of an act that constitutes a significant departure from the conduct expected from a service member.

The NDRB noted the Applicant’s multiple combat tours and decoration for valor in combat. The NDRB determined the Applicant’s discharge was proper and equitable at the time of issue, but that his drug use was a significant negative aspect of his military conduct.  The Board determined as no other incidents of documented misconduct were found in his service record that relief was warranted based on the quality of the Applicant’s service in combat operations and an upgrade to “General (Under Honorable Conditions)” would be appropriate.  

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 

ADDITIONAL COMMENTS NOT RELATED TO THIS DOCUMENTARY REVIEW.  

The NDRB noted the Applicant was not diagnosed with Post-Traumatic Stress Disorder (PTSD) while in the Marines, and he specifically declined evaluation for PTSD prior to being separated.  The Applicant’s reference letter from Dr. S. indicates the Applicant has symptoms of PTSD and states the Applicant is seeing Dr. S. as a patient.  The NDRB wants to ensure the Applicant understands his eligibility for treatment provided at no cost by the Veteran’s Administration.  The Applicant is eligible for Veteran’s Administration treatment for service-connected conditions, including, but not limited to, PTSD, regardless of the characterization of service shown on the Applicant’s DD-214.  The Applicant is advised to contact the local Veteran’s Administration office for further information.  Alternately, information can be found online at www.va.gov.

Additionally, the NDRB wishes to remind the Applicant he is entitled to an additional review of his discharge by the NDRB.  The Applicant in entitled to use this additional review to present evidence not considered by the Board for the current review.  Additional evidence could include evidence of diagnosis and treatment for PTSD, and any evidence of excellent post-service conduct. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, there is no law or regulation, which provides a 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; 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 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.
 
The Applicant is directed to the Addendum, specifically the paragraph concerning Additional Reviews, regarding this additional review.

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.

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