ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20100825
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)	20051114 - 20051212  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20051213	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20091108	Highest Rank:  
Length of Service:    Year(s)    Month(s)  26  Day(s)
Education Level:  	AFQT:  76
MOS: 5811 [MILITARY POLICE]
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle  Pistol      

Periods of UA/CONF:  

NJP:  

- 20090822:	Article  (Wrongful use, possession, etc of a Schedule I Controlled Substance – cocaine, 314 ng/ml)
	Awarded:   Suspended:  

SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  

- 20090822:	For wrongful use, possession, etc., of controlled substance.

Administrative Corrections to the Applicant’s DD 214

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

	  “MISCONDUCT”

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

Decisional issues: The Applicant and her counsel contend the following issues resulted in an improper discharge and an inequitable discharge characterization of service: (1) the Applicant should have been medically discharged with disability; (2) the Applicant’s new chain of command refused medical care and broke all contact with the medical staff; (3) the chain of command disregarded the civilian medical staff recommendations; (4) the urinalysis test was a “$1.99 dip-stick test” and was not a viable testing method for drugs; (5) the positive confirmation of drugs did not meet the civilian prosecution standards of confirmation by Gas Chromatography/Mass Spectrometry (GC/MS); (6) the Applicant’s subsequent civilian drug test was negative; (7) the Applicant did not witness or sign any proper chain of custody documentation.

Decision

Date:  20110830	        	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 NDRB 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 seven decisional issues for the NDRB’s consideration.  Additionally, the NDRB completed a thorough review of the circumstances that led to the discharge action and the discharge process to ensure the discharge met the pertinent standards of equity and propriety.

The Applicant’s record of service included one paragraph 6105 retention-counseling warning and one nonjudicial punishment for violation of the Uniform Code of Military Justice (UCMJ): Article 112(a) (Wrongful use, possession, etc of a schedule I controlled substance – cocaine, 314 ng/ml).  The Applicant acknowledged her complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs - in writing - on 09 November 2005.  Based on the Article 112(a) violation, processing for administrative separation was mandatory.  When notified of the administrative separation process using the board notification procedure, the Applicant elected to waive her right to consult with a qualified legal counsel, to submit a written statement to the Separation Authority, or to request an administrative board hearing be held to allow her to present her case for retention.  

The Applicant enlisted in the Marine Corps as a military policeman; after completing her entry level training requirements, she was assigned to HMX-1, the Presidential helicopter support squadron.  While assigned to the command, she was treated by base mental health care providers for suicidal ideations.  Due to anxiety disorder issues, coupled with suicidal ideations, the Applicant was unable to receive the proper clearances for duty with HMX-1 and was disqualified from this assignment.  The Applicant requested new orders to a deploying MP unit; as requested, she was assigned to a Combat Logistics Regiment for duty.  The Applicant completed pre-deployment training requirements and deployed to Iraq (Al-Asad Air Base) with her unit for duty as a vehicle crew gunner in a security detachment with an Explosive Ordnance Disposal team.  Upon return from deployment, the Applicant sought help for an eating disorder.  She was hospitalized under inpatient treatment and subsequently transferred by service record book to a civilian treatment facility near her hometown to facilitate recovery.  While assigned to the treatment facility, she received medical treatment for the physical effects of her disorder and psychiatric treatment for the psychological components of her health issues.

(Decisional Issue) (Propriety)  .  The Applicant contends that she should have been medically discharged for a medical disability because the results of a medical board, which recommended medical disability retirement, occurred before her misconduct of record (Issue 1).  Department of Defense disability regulations do not preclude a disciplinary separation.  SECNAVINST 1850.4E stipulates that separations for misconduct will take precedence over potential separations for any other reasons.  Whenever a member is being processed through the Physical Evaluation Board (PEB) process, and is subsequently processed for an administrative involuntary separation 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 stopped and is filed in the member’s terminated health record.  In the specific case of the Applicant, the command was working to present the Applicant’s case to the PEB for a medical discharge with disability; the local medical board documentation had been completed and was being prepared for transmittal to the PEB for a determination.  During this process, the Applicant tested positive for cocaine.  In accordance with Secretary of the Navy policy, processing for administrative separation for Misconduct (Drug Abuse) was mandatory.  As such, the PEB process was suspended, pending the outcome of her involuntary administrative separation recommendation.  The NDRB determined that discharge action and halting of the disability Physical Evaluation Board was proper.  Relief denied.

(Decisional Issue) ()  .  The Applicant contends that her new chain of command refused medical care and broke all contact with the medical staff (Issue 2).  The evidence of record reflects that the new chain of command made direct inquiries into the status of the Applicant with her health care providers.  When rebuked by the local health care providers who would not provide any detailed information, the command sought medical assistance through Tricare and Naval Hospital Bethesda, who made the inquiries and received all the medical records.  This action, and the resulting review by the newly assigned case manager at Bethesda Naval Hospital, was the precursor to starting the medical disability process.  This review also revealed a myriad of medical and psychological issues that predated the Applicant’s enlistment in the Marine Corps and were not revealed by the Applicant on her Medical Health History forms during the enlistment process.  The NDRB determined that this issue was without merit.  Relief denied.

(Decisional Issue) ()  .  The Applicant contends that her chain of command disregarded the civilian medical staff recommendations, leading to her emotional breakdown (Issue 3).  The Applicant’s service record documents a history of emotional and mental health issues, beginning before her service and continuing until her discharge.  After approximately a year of treatment through civilian medical facilities, paid for by the government, in which the Applicant was unable to contribute effectively to the Marine Corps, the command became more involved in the Applicant’s case management.  Naval Hospital Bethesda was brought on board to provide military case management and determine the proper process for the Applicant’s case.  The Applicant’s sworn statement indicated that her mental health issues were long-standing, describing it as a “roller coaster” that included admitting herself back into inpatient treatment numerous times.  Additionally, the Applicant stated that the urinalysis results in question were not the first time she had used cocaine and that she had been abusing alcohol throughout her service.  The NDRB found the Applicant’s contention to be without merit.  Relief denied.

(Decisional Issue) ()  .  The Applicant contends that the urinalysis test was a “$1.99 dip-stick test” and was not a viable testing method for drugs (Issue 4); the positive confirmation of drugs did not meet the civilian prosecution standards of confirmation by GC/MS (Issue 5); the Applicant’s subsequent civilian drug test was negative (Issue 6); and that the Applicant did not witness or sign any proper chain of custody documentation (Issue 7).  The Applicant’s urine sample was tested by the Naval Drug Screening Laboratory (NDSL) as part of a unit sweep drug test; it was not a “$1.99 dip-stick test.”  The NDSL conducts an initial screening test on all specimens and negative specimens are discarded.  If a sample screens positive during the initial screening, it is then tested a second time.  If the sample screens negative during the second screening, it is discarded.  If the sample screens positive a second time, it is considered a “presumptive positive.”  All “presumptive positive” specimens then undergo a GC/MS confirmation test.  The specimen must have tested positive in all three tests (screen, rescreen, and confirmatory) and passed scrutiny in numerous reviews by drug testing experts prior to being certified as a positive result and reported to the originating command.  This certification, which is made by a senior chemist, is the final approval step necessary prior to reporting the specimen as a positive.  If the final certifying official has any doubt as to the accuracy, scientific validity, or legal defensibility of the test results, the specimen is reported as negative in favor of the service member.  The specific results of the Applicant’s urine sample were determined to be positive for the presence of cocaine in her system.  These results were confirmed by a GC/MS confirmation test.  The Applicant’s re-test by a civilian medical lab does not refute the presence of cocaine in the Applicant’s system at the time of testing; it merely confirms that her sample, at the time of retest, was no longer positive for the specific chemical metabolites resulting from cocaine ingestion.

The Applicant’s nonjudicial punishment and discharge action contained the testing process documentation; the Applicant verified her sample by signature and recorded in the log the she was on medications, which needed to be cross-referenced should there be any positive results from her sample.  The Applicant’s sample also tested positive for Oxymorphone and Oxycodone, which were determined to be a positive result from the legal use of prescribed medications.  The presence of cocaine was determined to not be resultant from any legally prescribed medication.  Finally, the Applicant freely and voluntarily provided a detailed written statement after acknowledging her rights under Article 15 of the UCMJ.  In this statement, she acknowledges her illegal use of cocaine on more than one occasion.  The evidence of record does not 

demonstrate that the Applicant was not responsible for her conduct or that she should not be held accountable for her actions.  There is credible evidence in the record that the Applicant used illegal drugs; violation of Article 112a is an offense requiring mandatory processing for administrative separation of Marines regardless of grade or time in service.  Moreover, certain serious offenses, to include violation or Article 112 (a), warrant separation from the service to maintain proper order and discipline.  This action usually results in an unfavorable characterization of service at 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 the more lenient administrative discharge.  The NDRB determined an upgrade would be inappropriate.  Relief denied.

Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Marine Corps.  There is no evidence of impropriety, inequity, or procedural irregularities in the Applicant’s discharge.  The Applicant’s misconduct was clearly documented.  She acknowledged and waived her rights to consult with legal counsel and to request an administrative hearing.  The Applicant was afforded the appropriate due process during the processing of her case.  The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflected a deliberate and willful failure to meet the requirements of her contract with the U.S. Marine Corps and fell far short of that required for an upgrade of her characterization of service.  The Applicant’s characterization of service - Under Other Than Honorable Conditions - was proper, was equitable, and was consistent with other discharges for the same or like offense; as such, the Applicant’s service was equitably characterized.  Relief denied.

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