ex-, USMC 

Current Discharge and Applicant’s Request

Application Received:  20090409
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)	20040810 - 20040829  	Active:	

Period of Service Under Review:
Date of Enlistment:  20040830	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20080829	Highest Rank:  
Length of Service:    Year(s)    Month(s)  00  Day(s)
Education Level:  	AFQT:  56
MOS:  3043/0933
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle  Pistol    COA(5) LOA(3) MM

Periods of UA/CONF:  

NJP:  
- 20051212:	Article 92 (Failure to obey order or regulation)
	Awarded:    Suspended:  

SCM:  

- 20080429:	Article 107 (False official statement), 3 specifications
	Spec 1: 20070924 making false statement with intent to deceive.
	Spec 2: 20070924 making false statement with intent to deceive.
	Spec 3: 20070928 making false statement with intent to deceive, sign an official record.

	Article 112a (Drugs), 2 specifications
	Spec 1: wrongfully using cocaine.
	Spec 2: wrongfully using amphetamine.
	Sentence:   CONF 25 DAYS

SPCM:  

CC:  

Retention Warning Counseling:  

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:  

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 Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of  discharge, 29 August 2008.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct.

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

Applicant’s Issues

1.  Non-decisional.  Wants his RE-Code changed so he can reenlist.
3.  Decisional.  Claims he was found to be innocent, but new commander did not support.
3.  Decisional.  Isolated incident.

Decision

Date:  20091210    	Location: Washington D.C.	 Representation: 

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

Discussion
The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.  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 includes one Non-judicial Punishment (NJP) for violations of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation), and one summary court-martial (SCM) for violations of the UCMJ: Article 107 (False official statement, 3 specifications) and Article 112a (Illegal drug use, 2 specifications: cocaine and amphetamines).  The Applicant also had a pre-service drug waiver for using marijuana seven times prior to entering the Marine Corps, and acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 09 August 2004.  Based on the offenses committed, processing for administrative separation was mandatory.  When notified for administrative separation pProcessing, the Applicant consulted with qualified counsel, submitted a written statement, but waived his right to an administrative board.  

:  Nondecisional. .  The Applicant requests his reenlistment (RE) code be changed from RE-4 to RE-1 so he can reenlist.  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 NDRB 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.  

  Decisional.  ()  .  On 29 April 2008, the Applicant was the subject of a SCM for violations of the UCMJ: Article 107.  He was found guilty of all charges, reduced to private, forfeited pay and was confined for 25 days.  The Applicant claims he was subsequently found innocent of all charges because he was using prescription drugs which contained an illegal substance and was reinstated to his former rank of corporal. He states he was discharged with an Under Other Than Honorable Conditions character of service because there was a change in commanding officers and the new commander did not know his history.  A review of the Applicant’s record of service shows the SCM was set aside due to USMC Article 64, which allows the staff judge advocate to set aside a court-marital if there are errors in its proceedings.   There is no record the SCM was set aside because the Applicant was found innocent of the charges.  The Applicant acknowledges in a clemency request letter to the Commanding General, 3d Marine Logistics Group dated 17 June 2008 that he is being administratively separated due to drug abuse; that his conduct let down his family, the Corps and his country.  He apologizes for his actions and states his career in the Marine Corps is over.  No where does the Applicant state his conviction was erroneous because he was using approved and prescribed medication at the time of his urinalysis.  The Applicant provides no additional evidence to support his statement.  Relief is not warranted.

Issue 3. Decisional.  (Equity)  .  The Applicant states his discharge was improper because this was an isolated incident in an otherwise good career.  Despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain good order and discipline - violation of Article 112a meets this standard.  The Applicant signed the USMC Drug Policy on 9 August 2004.  He was fully aware there is a zero tolerance policy for drug abuse and he acknowledged the consequences.  While the may believe his action was a one time incident, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record does not demonstrate the Applicant was not responsible for his conduct or he should not be held accountable for his actions.  When a  service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  An  discharge is warranted when a Marine commits or omits an act that constitutes a significant departure from the conduct expected from a Marine.  The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of conduct expected of all Marines, regardless of his grade and length of service and falls far short of what is required for an upgrade in the characterization of service.  Relief is not warranted

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   

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of  discharge.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct.]

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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’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 NDRB 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 NDRB 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