ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20100407
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MARCORSEPMAN 

Applicant’s Request:	Characterization change to:  or general (under honorable conditions)
	Narrative Reason change to: 

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	20050310 - 20050327  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20050328	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20090302	Highest Rank:  
Length of Service:    Year(s)    Month(s)  3  Day(s)
Education Level:  	AFQT:  35
MOS:  0341 (Mortarman)
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle (2), , , , , , , MM

Periods of CONF:  

NJP:  

- 20050805:	Article  (Unauthorized absence 20050725 - 20050731, 5 days)
	Awarded:    Suspended:  

- 20080129:	Article  (Wrongful use, possession, etc of a controlled substance; 4 separate specifications
	Specification 1: On or about 10 Dec 2007, did test positive on unit urinalysis test for THC (1918 ng/ml)
	Specification 2: On or about 12 Dec 2007, did test positive on unit urinalysis test for Cocaine (210 ng /ml)
	Specification 3: On or about 13 Dec 2007, did test positive on unit urinalysis test for Cocaine (6662 ng/ml) and THC (71 ng/ml)
	Specification 4: On or about 02 January 2008, did test positive on unit urinalysis test for THC (39 ng/ml)
	Awarded:     Suspended:  

- 20080227:	Article  (General article - breaking restriction)
	Article  (Unauthorized absence 20080224 - 20080225, 2 day)
	Awarded:     Suspended:  

- 20081218:	Article  (Wrongful use, possession, etc of a controlled substance; 1 specification; on or about 08 July 2008, did test positive on a unit urinalysis test for THC (33 ng/ml)
	Awarded:    Suspended:  

SCM:  

SPCM:  [violation of Article 112(a) - charges initially referred to SPCM (July 2008); remitted to NJP and adjudicated 18 Dec 2008]

CC:  

Retention Warning Counseling:  

- 20050331:	For unauthorized absence from 20050725 - 20050731

- 20080104:	For illegal drug related incident on 20071210 specifically 1989 ng/ml THC usage

- 20080104:	For illegal drug related incident on 20071212 specifically 6872 ng/ml COC usage

-20081208:	For illegal drug use incident 08 July 2008; specifically THC, 33 ng/ml.  Advised of mandatory administrative separation processing.    

- 20081218:	For recent battalion level NJP for violations of Article 112A

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

	  “UNDER OTHER THAN HONORABLE CONDITIONS”
	  “(2) 20080224 - 20080225, (5) 20050725 - 20050731”

The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.

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:		Rehabilitation/Treatment:		Criminal Records:	
	Personal Documentation:		Community Service:		References:	
	Department of VA letter:		Other Documentation:	
		Additional Statements:
	From Applicant:		From/To Representation:		From/To Congress member:	

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: The Applicant seeks an upgrade in assigned characterization of service at discharge to General (Under Honorable Conditions) or Honorable in order to facilitate better employment opportunities.  

2.	Decisional issues:  The Applicant contends that his discharge characterization of service was inequitable due to mitigating factors of post-combat stress problems and youthful immaturity.

Decision

Date:  20110602		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 one decisional issue for the NDRB’s consideration.  In reviewing the Applicant’s issue, the NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety.

The Applicant’s enlistment record reflects his entry into military service with a pre-service waiver for drug use - marijuana, without police involvement and for alcohol abuse.  Furthermore, the Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs as a function of his enlistment contract and pre-service drug waiver process.  The Applicant’s record of service included five 6105 retention-counseling warnings and four nonjudicial punishments for violations of the Uniform Code of Military Justice (UCMJ), specifically:

•	Article 86 (Absence without leave) - 2 specifications
•	Article 112(a) (Wrongful use, possession, etc. of a controlled substance) - 5 specifications (marijuana and cocaine)
•	Article 134 (General Article; specifically, breaking restriction).

The Applicant’s official military service record documents that he is a combat veteran, having conducted combat operations as an infantryman in the Al-Anbar Province of Iraq in support of Operation IRAQI FREEDOM.  The Applicant was awarded the Purple Heart and Combat Action Ribbon for wounds received in actions against opposing forces on 12 May 2006.  Additionally, the Applicant was combat meritoriously promoted to Lance Corporal.  Due to wounds received in combat, the Applicant redeployed early from theater to his home-station for follow on medical treatment and was not able to deploy with his unit for a follow-on combat deployment.

The NDRB reviewed the Applicant’s administrative separation package to ensure he was afforded all rights as required by the Marine Corps Separation and Retirement Manual (MARCORSEPMAN).  On 06 May 2008, the Applicant was notified of the proceedings for administrative separation due to Misconduct (Drug Abuse) in accordance with paragraph 6210.5 of the MARCORSEPMAN.  When notified of administrative separation processing using the  notification procedure, the Applicant waived  right to consult with qualified legal counsel, did not elected to submit a written statement to the Separation Authority, and chose to waive his right to request an administrative board hearing.  However, the Applicant did subsequently provide a written statement to the Separation Authority in which he acknowledged fully understanding the Marine Corps Policy on Drug Abuse and sought consideration of his combat service and injuries received.  The command advised the Applicant that they were recommending he be separated with a characterization of service at discharge of Under Other Than Honorable Conditions.  On 06 May 2008, they forwarded their recommendation to the Separation Authority - the Commanding General, 1st Marine Division.  While being administratively processed for separation, the Applicant was screened for Post-Traumatic Stress Disorder (PTSD).  The Applicant was determined by competent medical authority to exhibit signs of 

the disorder and was further recommended to seek evaluation from mental health professionals.  The Applicant - in writing - declined to be evaluated and/or treated for PTSD.  After review by the Staff Judge Advocate, the Separation Authority determined that the evidence of record was sufficient in law and fact to support the proposed discharge action.  The Separation Authority reviewed the chain of command’s recommendations for an Under Other Than Honorable Conditions characterization of service; however, given the unique circumstances of this discharge action, he directed the Applicant receive a General (Under Honorable Conditions) characterization of his service at discharge.  The Separation Authority affirmed this decision in writing on 14 July 2008.  However, on 04 August 2008, the Commanding General rescinded the discharge authority pursuant to notification that the Applicant had again tested positive for illegal drugs prior to making his decision.          

The Commanding Officer subsequently referred the Applicant to trial by Special Court-Martial; a determination of guilt at trial by Special Court-Martial could have resulted in the awarding of confinement for up to two years and a punitive discharge.  However, on 18 December 2008, the Applicant received nonjudicial punishment for violation of Article  (Wrongful use, possession, etc. of a controlled substance; that, on or about 08 July 2008, the Applicant did test positive on a unit urinalysis test for THC (33 ng/ml).  On that same day, the Applicant was re-processed for administrative separation pursuant to paragraph 6210.5 of the MARCORSEPMAN - Misconduct (Drug Abuse).  The Separation Authority approved the proposed recommendations and directed the Applicant be discharged with an Under Other Than Honorable Conditions characterization of his service and that he receive a reentry code of RE-4B (not recommended for reenlistment due to drug abuse).  The Applicant was discharged on 02 March 2009.
    
Nondecisional Issue:  The Applicant seeks an upgrade in assigned characterization of service at discharge to General (Under Honorable Conditions) or Honorable in order to facilitate better employment opportunities.  There is no requirement, or law, that grants re-characterization based solely on the issue of facilitating employment opportunities.  As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.  Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities or Department of Veterans Affairs (VA) benefits.  Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge.

(Decisional Issues) ()  .  The Applicant contends that his discharge characterization of service was inequitable due to mitigating factors of post-combat stress problems and youthful immaturity.  The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service.  In reviewing discharges, the NDRB 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.

Based on the violation of Article 112(a) of the UCMJ, processing for administrative separation was mandatory.  As such, the Applicant was processed for administrative separation in accordance with paragraph 6210.5 of the MARCORSEPMAN.  The Applicant was properly notified of the proposed separation processing and elected his rights - in writing.  Furthermore, he accepted the separation action and waived his right to an administrative hearing board.  The Separation Authority determined that the evidence of record, coupled with a pre-service waiver for marijuana, supported the basis for separation and was sufficient in law and fact to support discharge.  In accordance with the MARCORSEPMAN, the Applicant was screened for substance abuse dependence (which he refused treatment for) and was further screened for signs of possible PTSD as required by the Commanding General, I Marine Expeditionary Force.  The NDRB determined that the discharge action was proper; as such, relief based on propriety is not warranted.

Despite a service member’s prior record of service, certain serious offenses, though isolated, warrant separation from the Naval Service in order to maintain good order and discipline.  Violation of Article 112a is one such offense, requiring mandatory processing for administrative separation, regardless of grade, age, or time in service.  This action usually results in an unfavorable characterization of service at discharge or, at a maximum, a punitive discharge with the possibility of confinement for up to two years if adjudicated and awarded as part of a sentence by a Special or General Court-Martial.  The command did not opt to pursue a punitive discharge, but instead chose the more lenient nonjudicial punishment and administrative discharge process.  While processing for separation, the Applicant was re-evaluated by appropriately credentialed mental health care professionals who diagnosed the Applicant with mild PTSD symptoms, but that he did not currently appear to meet the full diagnostic criteria for PTSD.
 
Characterization of service at discharge is the recognition of a Marine’s performance and conduct during a period of enlistment and is not necessarily dependent upon the narrative reason for separation.  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 as 

Honorable.  A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record.  An Under Other Than Honorable Conditions characterization of service is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service.  

The chain of command originally recommended separation with an Under Other Than Honorable Conditions characterization of service at discharge; however, in consideration of the unique mitigating factors in this case, coupled with the diagnosis of mild PTSD symptoms, the Separation Authority directed that the Applicant be awarded a General (Under Honorable Conditions) characterization of service at discharge.  Unfortunately, just days prior to this determination, the Applicant again tested positive for illegal drugs.  As such, the command requested, and the Separation Authority approved, rescinding of the discharge authority with referral of the Applicant to trial by Special Court-Martial.  For undocumented reasons, the command again opted not to pursue the punitive discharge and instead chose the more lenient nonjudicial punishment and resubmission of the administrative discharge recommendation.  The Applicant was re-processed for administrative separation; on 24 February 2009, the discharge action was approved - Misconduct (Drug Abuse) - and the Applicant was awarded an Under Other Than Honorable Conditions characterization of his service at discharge.      

The NDRB determined that the Separation Authority did take the Applicant’s combat service, resultant injuries, his traumatic combat experiences, and his youth and immaturity into account when he overrode the chain of command’s recommendations and initially awarded the more lenient General (Under Honorable Conditions) discharge.  Furthermore, the NDRB determined that the Applicant’s continued blatant misconduct and disregard for good order and discipline warranted reconsideration and that these actions did negate the mitigating factors that were originally considered.  The NDRB determined the Applicant’s conduct, which forms the primary basis for determining the character of service, did involve one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service.  As such, the NDRB determined that the separation was proper, the narrative reason for separation was accurate, and the awarded characterization of service, as issued, was appropriate and was consistent with the characterization of discharge given others in similar circumstances.  Accordingly, a change in the characterization of service would be inappropriate.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  and medical record entries, and the discharge process, the NDRB found   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  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