ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20080909
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) 20001018 - 20010702  		Active:  

Period of Service Under Review:
Date of Enlistment:  20010703	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20050702	Highest Rank:  
Length of Service:    Years    Months   00  Days
Education Level:  	AFQT:  76
MOS:  1142
Proficiency/Conduct Marks (# of occasions):   () /  ()         Fitness Reports:  

Awards and Decorations (per DD 214): Rifle ,      

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

NJP:  
- 20050214:  Article 112a (Drug use)
                     Awarded:      Suspended:     Suspension vacated:  20050401

Retention Warning Counseling:  

-  20040601:  For violation of Article 92 (Disobeying a direct order or regulation)
-  20050225:  For lack of judgment, admitted to drug abuse (marijuana)  

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

                    Other Documentation:  

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

Applicant’s Issues

1.  Administrative Separation Board was unfair.
2.  Sought help for drug abuse problem in January, but didn’t receive treatment until April.
3.  Record of service.
4.  Placed on restriction after contacting Congressman.

Decision

Date:  20090114	          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 he is entitled to a discharge upgrade because his Administrative Separation Board was unfair.  Specifically, the Applicant contends two of the members of the board were subordinates of the commanding officer.  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 two retention warnings and one NJP for violation of the Uniform Code of Military Justice (UCMJ):  Article 112a (Drug use, wrongful use or possession 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 pursue a punitive discharge but instead opted for an administrative discharge.  
The record of evidence shows the counsel for the respondent challenged the members in question during the hearing and addressed this issue again in his Letter of Deficiency dated 23 May 2005.  Based on the Applicant’s objections to the board members during the hearing, the legal advisor conducted a “voir dire” and determined the members in question could be fair and impartial.  A “voir dire” consists of oral questions asked of prospective jurors by the judge, the parties, or the attorneys, or some combination thereof. This oral questioning, often supplemented by a prior written questionnaire,  is used to determine whether a potential juror is biased, knows any of the parties, counsel, or witnesses, or should otherwise be excluded from jury duty. Voir dire is a tool used to achieve the constitutional right to an impartial jury, but it is not a constitutional right in itself.
The legal advisor responded to the letter of deficiency item addressing this issue again and noted that “all decisions of the legal advisor on challenges are final.”  The legal advisor’s response was positively endorsed by the Applicant’s Commanding Officer, Staff Judge Advocate, and the Commanding General.  Based on the thorough treatment already given to this issue, the NDRB determined the awarded discharge was appropriate and an upgrade based on the Applicant’s contention of an unfair Administrative Separation Board would be inappropriate.

:  ()  .   The Applicant contends he is entitled to a discharge upgrade because he asked for substance abuse treatment in January 2005 but did not receive treatment until April 2005.  The available record of evidence shows the Applicant completed a substance abuse screening on 10 February 2005 where he was diagnosed as a cannabis and alcohol abuser.  The letter summarizing the screening results notes the Applicant was assigned to the Intensive Outpatient treatment program which would be scheduled after the Applicant’s rehabilitation from surgery.  The NDRB rejects the Applicant’s contention because the three-month delay was not determined to be significant in this case.  Furthermore, the three month delay was justified due to other medical issues.  The NDRB determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate.

:  ()  .  The Applicant contends he is entitled to a discharge upgrade due to his record of service.  Specifically, he contends his average proficiency and conduct marks warrant an upgrade.  Despite a Marine’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  For the edification of the Applicant, an “Under Other Than Honorable” conditions discharge is warranted when the basis for separation is commission or omission of an act that constitutes a significant departure from the conduct expected of a Marine.  The NDRB determined the Applicant’s misconduct was a significant departure from that expected from a Marine and the awarded discharge was appropriate, an upgrade founded upon the Applicant’s record of service would be inappropriate.

:  ()  .  The Applicant contends he is entitled to a discharge upgrade because he was placed on restriction after he contacted his congressman.  The record of evidence shows the Applicant was awarded punishment at his NJP on 14 February 2005 which included 45 days of restriction.  The commanding officer suspended the restriction for a period of six months.  On 1 April 2005 the suspension was vacated due to written statements made to his congressman regarding the extent of his drug usage.  The NDRB rejects the Applicant’s contention he was placed on restriction because he contacted his congressman; the Applicant was placed on restriction because he admitted more illegal drug use than he initially admitted to with his command.  The commanding officer has the authority to vacate suspended punishment based on violations of the conditions of the suspension.  Furthermore, this issue has no bearing on the fact the Applicant confessed to a serious offense for which he was processed for separation.  The fact that he was obligated to receive the full punishment adjudged at his NJP does not justify a discharge upgrade. The NDRB determined the awarded discharge characterization was appropriate and an upgrade based on this issue would be inappropriate.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service,   Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found   

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 use).

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