ex-, USMC

Current Discharge and Applicant’s Request
Application Received:  20090916
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:	NONE		Active:	

Period of Service Under Review:
Date of Current Enlistment:  19981016	Age at Enlistment:  
Period of Enlistment:   Years   Months [6x2 REOP]
Date of Discharge:  20061002	Highest Rank:  
Length of Service:
	Inactive:	  Year(s)    Month(s)  04  Day(s)
	Active:	  Year(s)    Month(s)  13  Day(s)
Education Level:  	AFQT:  32
MOS:  3531
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle 

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

CC:  None
- 20030503:	Offense:  Assault and disorderly conduct, Tucson, Az 
	Sentence:  Dismissed and Citation ordered vacated upon completion of directed “Diversion Program”

Retention Warning Counseling:  
- 20011102:	For illegal drug involvement civilian charges pending.
- 20060509:	For unsatisfactory IDT attendance or participation. 

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.

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

Applicant’s Issues

1.	Nondecisional issues: None
 
2.	Decisional issues: (1) (Propriety) Applicant contends that he was improperly and wrongfully separated on the basis of an arrest by a civilian law enforcement agency and that presumption by his command was false because he has no arrest, prosecution, or conviction related to this presumed offense.  (2) (Propriety) Applicant contends that his rights to a fair and impartial administrative board hearing were violated, which may have resulted in an unfair outcome against the Applicant.  (3) (Propriety/Equity) Applicant contends he was both wrongfully and inequitably separated for misconduct-drugs; his command-directed urinalysis test sample was negative for any illegal substances.       

Decision

Date:  20101022	          Location: Washington D.C.	    Representation: 

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

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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant identified three decisional issues to the Board.  The Board completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure his discharge met the pertinent standards of equity and propriety.  

The Applicant’s record of service reflects entry into the service on a waiver for pre-service drug use.  Throughout his enlistment, the Applicant received two retention-counseling warnings in accordance with paragraph 6105 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN).  The Applicant’s record of service reflects neither a non-judicial punishment nor a conviction by Summary or Special Court-Martial.  Additionally, the Applicant’s civilian arrest record reflects only one arrest for a non-related assault and disorderly conduct charge, which the court ordered vacated after completion of a court-approved “Diversion Program.”
 
Based on reasonable belief that the Applicant had violated Article 112(a) of the Uniform Code of Military Justice (UCMJ), his Command recommended he be administratively processed for separation pursuant to paragraph 6210.5 of the MARCORSEPMAN – misconduct, drug abuse.  When notified of administrative separation processing using the administrative board notification procedure, the Applicant elected his right to consult with a qualified counsel, to submit a written statement to the Separation Authority, and requested an administrative discharge board be convened.  

The Applicant provided additional documentation for the Board’s consideration, which included his certification of non-involvement with local law enforcement authorities and his college degree completion certificates.  

:  (Decisional) ()  .  The Applicant contends that he was improperly and wrongfully separated on the basis of an arrest by a civilian law enforcement agency and that the presumption of arrest or prosecution by his command was false because he has no arrest, prosecution, or conviction related to the presumed offense.  

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.  In response to the questioning of the Applicant, and the belief by his Command that the Applicant was pending an arrest by local civil authorities for illegal drug sales, the Applicant’s Command directed that he submit to a urinalysis; the Applicant voluntarily complied.  The Command further notified him - in writing - that they intended to recommend the administrative separation of the Applicant to the General Courts Martial Convening Authority (GCMCA) in accordance with the Marine Corps’ mandatory separation requirement - paragraph 6210.5 of the MARCORSEPMAN.  Paragraph 6210.5 of the MARCORSEPMAN establishes the “zero tolerance policy” for drug abuse in that:
 “Commanders SHALL process Marines for separation for illegal, wrongful, or improper use, possession, sale, transfer, distribution, or introduction on a military installation of any controlled substance, marijuana, steroids, or other dangerous or illicit drug or other forms of substance abuse (such as designer drugs…) as defined in Secretary of the Navy Instruction 5200.28C.”

Furthermore, paragraph 6210.5 directs that: “All Marines (regardless of pay grade) identified for mandatory processing under the criteria of paragraph 6210.5 WILL be processed for separation by reason of misconduct, due to drug abuse, on the first offense.”  

The requirement for processing for separation does not require a civilian conviction, a positive urinalysis for drugs, or a military finding of guilt at a non-judicial punishment or trial by court martial.  Separation requires only that by a reasonable belief, the preponderance of evidence available sustains the factual allegation.  In the Applicant’s case, the command must have a reasonable belief, as established by a preponderance of the evidence, that the Applicant took part in the illegal sale of a controlled substance (MDMA methamphetamine). 

Because the Command intended to recommend a discharge characterization of service of Under Other Than Honorable Conditions, the MARCORSEPMAN affords the Applicant the right to an administrative board hearing in order to present evidence on his behalf.  The Applicant exercised this right and his right to consult with and have counsel present.  The Command convened a board to hear the facts and testimony surrounding the allegation of a violation of Article 112a of the UCMJ and to determine if the evidence presented sustained the factual allegation.  In the Applicant’s case, an undercover police officer made a purchase of 500 tablets of MDMA methamphetamine for $800.00 from the Applicant; the officer testified at the board to that fact.  Additionally, the officer testified that he had further arranged to make a second, larger purchase, at a future date, from the Applicant and that the Applicant had established his intent to effect that sale with him.  The officer testified that when brought to the police station for questioning, the Applicant admitted, for the record, that he did sell 500 tablets of MDMA to the undercover officer. 

The administrative discharge board considered all relevant matters presented by the command and by the Applicant.  The board was convinced of the Applicant’s guilt by a preponderance of the evidence and recommended separation with a corresponding characterization of service of Under Other Than Honorable Conditions.  The administrative discharge board, by a vote of 3-0, established the basis for separation – that the Applicant had violated Article 112a of the UCMJ by the illegal sale of a controlled substance.  As such, the command was required to process the Applicant for administrative separation per the Marine Corps Policy.  The fact that the police did not charge or arrest the Applicant is a matter for the civil authorities, falling within their purview to determine which cases they choose to prosecute.  It does not discount the factual matter of the Applicant’s violation of the Marine Corps Policy for Drug Abuse.  The NDRB determined that relief was not warranted.     

:  (Decisional) ()  .  The Applicant contends that his rights to a fair and impartial administrative board hearing were violated, which may have resulted in an unfair outcome against the Applicant.  The applicant contends that the senior member of the discharge board could not “approach the case with impartiality and an open mind” because he had reviewed the evidence the evening prior to the board convening.  The Convening Authority and the GCMCA addressed this issue as part of the administrative separation process.  The nature of the exhibits establishing the allegations of the Applicant’s misconduct were all factual in nature.  Additionally, the exhibits had also been provided to the Applicant, and his counsel, weeks prior to the board convening.  The Convening Authority and the GCMCA review both concurred that the factual nature of the exhibits limited the Senior Member’s ability to make any prejudicial assumptions or inferences prior to the board and that there was no evidential disadvantage since both the senior member of the Board and the Applicant and his counsel had equal access.  The NDRB determined that the impropriety did not prejudice the outcome; as such, relief was not warranted.

:  (Decisional) ()  .  The Applicant contends he was wrongfully and inequitably separated for misconduct-drugs and that his command-directed urinalysis test sample was negative for any illegal substances.  The Applicant was notified of the proposed recommendation for administrative separation in November 2001; he acknowledged his rights in response to that notification, which recommended a General (Under Honorable Conditions) characterization of service.  Not until May of 2006, after being denied the right to drill with his unit for over 4 ½ years, did the Applicant’s Command take any action to process him for separation.  At this point, the Applicant was re-notified of the proposed processing for separation with a recommendation for an Under Other Than Honorable Conditions characterization of service.  

However, on 17 May 2005, in writing to his Commanding Officer, the Applicant stated his intent to no longer affiliate with the unit and that he would not renew his commitment to the USMCR beyond his current obligation to drill (14 Oct 2004).  At this point in the process, the Applicant’s mandatory drill date had passed; he was no longer in an obligated drilling status.  In accordance with the Marine Corps Reserve Administration Manual, the Command was obligated to transfer the Applicant to the Individual Ready Reserve (IRR) with an option to notify Marine Corps Mobilization Command (MOBCOM) of the outstanding reason for separation.  The Drilling Selected Marine Corps Reserve unit did not have jurisdiction over the Applicant when it re-initiated the administrative separation process for an Under Other Than Honorable characterization of service and was obligated to transfer the Marine to the IRR, regardless of pending separation.  The Applicant’s separation was an issue for the MOBCOM to address, utilizing their procedures with their factors for consideration in determination of an equitable characterization of service.  The NDRB determined that the separation was both improper and inequitable.  Relief is warranted.         

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and the discharge process, the Board found the discharge was improper and inequitable.  Therefore, the awarded characterization of service shall   and the narrative reason for separation shall remain .

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

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe 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:  After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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.  There are veterans organizations such as the American Legion and the Disabled American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  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 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended 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 BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.  

Post-Service Conduct:  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  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 support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (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; attendance at 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  in-service misconduct was an aberration and not indicative of the member’s overall character.

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