ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20080825
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)	19991209 - 19991214  	Active:	

Period of Service Under Review:
Date of Enlistment:  19991215	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20031003	Highest Rank:  
Length of Service:    Years    Months   19  Days
Education Level:  	AFQT:  42
MOS:  0331
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle  Pistol   

Periods of UA/CONF:  

NJP:  
- 20020906:	Article 112a (Drug abuse, wrongful use of controlled substance – cocaine (#1170))
	Awarded:     Suspended:  

SCM:      SPCM:      CC:  

Retention Warning Counseling:  

- 20001023:	For overweight, current weight and body fat percentage are 192 pounds and 28%.  His max weight and body fat percentage by MCO 6100.10B is 175 pounds and or 18%.
- 20020925:	For my wrongful use of cocaine on 20020731 as identified through urinalysis testing, and evidenced by Naval Drug Lab message R 052102z August 2002.
- 20021027:	For your wrongful use of cocaine on 20020731 as identified through urinalysis testing, and evidenced by Naval Drug Lab message R 052102z August 2002.
- 20030416:	For drug abuse.
- 20030501:	For drug abuse, specifically cocaine.
- 20030711:	For being absent without authority on 2100, 20030706 - 0630, 20030707.

Types of Documents Submitted/reviewed

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

Related to Post-Service Period:	
	Employment:			Finances:			Education/Training:	
	Health/Medical Records:		Substance Abuse:			Criminal Records:	

Related to Post-Service Period (cont):

	Family/Personal Status: 		Community Service:  		References:  		
              Additional Statements: 
                             From Applicant:  	From Representation:         	From Congress member:    

                    Other Documentation:  

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 (Drug abuse, wrongful use of a controlled substance). 

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

Applicant’s Issues
1.  Youth and immaturity.
2.  Alcohol dependency contributed to and mitigated misconduct.
3.  Post service conduct.

Decision

Date:  20090129    		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 problems in the Marine Corps can be attributed to mistakes he made while being young and immature.  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 6 retention warnings and an NJP for violation of the Uniform Code of Military Justice (UCMJ):  Article 112a (Drug abuse, wrongful use of a controlled substance, 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.  The command did not pursue a punitive discharge but opted instead for an administrative discharge.  While he may feel his youth and immaturity were the underlying cause of his misconduct, the record of evidence does not demonstrate the Applicant was not responsible for his misconduct or should not be held accountable for his actions due to youth or immaturity.  

It should be noted the Applicant joined the military when he was 20 years old, 2 years older than the average recruit, and at the time of his cocaine offense he was 23 years old.  The Applicant was old enough and had served in the Marine Corps long enough to have understood the core values of the Marine Corps.  The Board determined the awarded discharge characterization was appropriate and an upgrade based on youth and immaturity would be inappropriate.

:  ()  .   The Applicant contends his alcohol dependency contributed to and mitigates his misconduct.  Again, 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 Board acknowledges the Applicant self-referred himself to the Consolidated Substance Abuse Counseling Center (CSACC) to receive treatment for alcohol dependency.  As a note, the Applicant had no misconduct prior to his self-referral to CSACC.  He then received a Medical Officer Evaluation, which recommended attendance in the Intensive Outpatient Treatment program for his alcohol abuse.  With the possibility the United States was going to go to war with Iraq, the command decided the Applicant needed to train with the company vice sending him to treatment.  Shortly thereafter, the Applicant committed misconduct (drug abuse, cocaine), apparently while he was intoxicated.  While he may feel his alcohol dependency was the underlying cause of his misconduct, the record of evidence does not demonstrate the Applicant was not responsible for his misconduct or should not be held accountable for his actions based on his use of alcohol.  With that said, if the Applicant would have received the treatment as recommended on the Medical Officer Evaluation, it is possible he would have made better decisions, due to not being impaired.  The Applicants misconduct notwithstanding, the Board recognized he self-referred himself for an alcohol problem and the command had to place mission first and did not send him to the treatment the Medical Officer prescribed and recommended. 

The Applicant has requested an upgrade to “Honorable.”   For the edification of the Applicant, 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.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no impropriety in the discharge action but did discern an inequity in the characterization of the 
Applicant’s service.  The Board determined the Applicant’s alcohol dependency did not mitigate his misconduct, but did determine an upgrade to “General (Under Honorable Conditions)” was appropriate and 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 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 documentation, references and evidence on his behalf.  The Board applauds the Applicant for his success since his discharge from the Marine Corps.  The Applicant has earned a Bachelor of Arts degree from Malone College, certificates making him a certified clinical hypnotherapist, additional certificate of completion for Nurse Aid Training and Competency Evaluation Program from Liberty Health Care Center, Inc., proof of employment, and a current/clean police record check and drug test.  The Board determined the Applicant made positive changes in his life and is becoming a productive and worthy citizen in his community. Thus, an upgrade to “General (Under Honorable Conditions)” would also be warranted due to his post-service efforts.

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