ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20100827
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)	20060314 - 20060612  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20060613	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20090616	Highest Rank:  
Length of Service:    Year(s)    Month(s)  04  Day(s) [less 24 days time lost due to confinement]
Education Level:  12	AFQT:  52
MOS:  3521
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle   ACM (WITH 1 BRONZE STAR)    MM

NJP:  
- 20070223:	Article  (Violated MCO P1020.34G, 2 specifications)
	Specification 1: Wearing earrings
	Specification 2: Wearing a tongue ring
	Awarded:    Suspended:  

- 20071214:	Article  (Absence without leave, specifically, failure to go to appointed place of duty)
	Awarded:   Suspended:  

- 20080115:	Article 86 (Absence without leave; specifically, failure to go to appointed place of duty)
	Article  (Disrespectful in language toward Corporal – leaving a vulgar voice mail)
	Awarded:    Suspended:  

SCM:  
- 20090311:	Article  (Wrongful use, possession, etc of a controlled substance – marijuana)
	Sentence:  (20090311-20090403, 24 days served)  

Retention Warning Counseling:  
- 20070223:	For violating MCO P1020.34G by wearing earrings and having a tongue ring.  This type of behavior is unacceptable and will not be tolerated.

- 20090210:	For unauthorized absence.  Specifically on 20090202 reported back from liberty three hours late and informed his chain of command that he was out drinking and overslept.  This conduct displays a lack of maturity, responsibility and sets a poor example for yourself, your fellow Marines and the Marine Corps.

- 20090313:	For positive results for illegal drug use on a random urinalysis conducted on 20090210.  This conduct displays a lack of discipline, leadership and judgment and sets a poor example for yourself, your fellow Marines and the Marine Corps.

SPCM:  	CC:  

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”

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 contends that his discharge characterization of service was overly harsh for one isolated use of drugs without any drug waiver to enlistment, and it was his first “serious” misconduct.

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 one decisional issue for the NDRB’s consideration; additionally, 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 record of service included three paragraph 6105 retention-counseling warnings and three non-judicial punishments for violations of the Uniform Code of Military Justice (UCMJ), specifically, Article 86 (Absence without leave - failure to go to appointed place of duty, 2 specifications); Article 91 (Insubordinate conduct toward a noncommissioned officer in the execution of his official duties); and Article 92 (Violation of a lawful order or regulation, 2 specifications).  Additionally, the Applicant was subject to a Summary Court Martial for violation of Article 112a (Wrongful use, possession, etc of a controlled substance - Marijuana).

The Applicant’s enlistment record reflects his entry into military service without any requirement for waiver of enlistment and induction standards.  The Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs, in writing, on 13 March 2006 as a contingent to his enlistment.  Based on the violation of Article 112(a), processing for administrative separation was mandatory.  The NDRB reviewed the Applicant’s administrative separation package: when notified of administrative separation for both an established Pattern of Misconduct and Misconduct (Drug Abuse) using the  notification procedure, the Applicant waived his right to consult with a qualified legal counsel and chose not to submit a written statement to the Separation Authority or to request an administrative board hearing.

The Applicant provided no additional documentation for the NDRB’s consideration or to rebut the government’s presumption of regularity.

(Decisional Issues) – The Applicant contends that his discharge characterization of service was overly harsh for one isolated use of drugs without any drug waiver to enlistment, and it was his first “serious” misconduct.  The NDRB conducted 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 was recommended for administrative separation based on dual reasons for separation: Misconduct (Pattern of Misconduct) due to an established pattern of misconduct while in service and Misconduct (Drug Abuse) due to his violation of the Marine Corps Policy on Illegal Drugs as evidenced by the positive urine sample test results.  Despite a service member’s prior record of service, certain serious offenses warrant separation from the Naval Service in order to maintain proper order and discipline.  Violation of Article 112(a) is one such offense, requiring mandatory processing for administrative separation, regardless of grade, performance, service record, 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, 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 administrative discharge process.  The Applicant was pending trial by special court-martial, however, he opted to enter into a pre-trial agreement.  The Applicant agreed to plead guilty, to waive his right to an administrative board hearing, and to cooperate with the Naval Criminal Investigative Service; in consideration, the command agreed to withdraw the charges from a punitive court-martial venue and refer to the lesser administrative, non-punitive summary court-martial.

On 02 June 2009, the Separation Authority approved the command’s recommendation for separation and directed the Applicant be discharged under other than honorable conditions for Misconduct (Drug Abuse) pursuant to paragraph 6210.5 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) and Misconduct (Pattern of Misconduct) pursuant to paragraph 6210.3 of the MARCORSEPMAN.  The primary basis for separation was directed to be Misconduct (Drug Abuse).  The Applicant was discharged on 16 June 2009.  Based on a detailed review of the service record, the NDRB determined that the separation was proper and that the narrative reason for separation was accurate.  Relief denied.

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 under Honorable conditions.  An Under Other Than Honorable Conditions discharge 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 NDRB determined the Applicant’s conduct, which forms the primary basis for determining the character of service, reflected a significant departure from that conduct expected of a service member.  His three NJPs, three retention warnings and a summary court-martial represented specific acts that constituted a significant departure for the conduct expected of Marines.  As such, the NDRB determined that the narrative reason for separation and the resulting characterization of service at discharge was proper, was equitable, was warranted, and was and remains consistent with the characterization of discharge given others in similar circumstances.  Relief denied.

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