ex-, USMC 

Current Discharge and Applicant’s Request

Application Received:  20101116
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)	20010726 - 20011204  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20011205	Age at Enlistment:  
Period of Enlistment:  5 Years with   Months Extension
Date of Discharge:  20091027	Highest Rank:  
Length of Service:    Year(s)    Month(s)  23  Day(s)
Education Level:  10 / GED [National Guard Youth Challenge Program]        AFQT:  53
MOS:  6123
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle , , , , JMUA, , CoC, LoA (7), 

Periods of CONF:  

NJP:  	SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  
- 20030715:	For not being at appointed place of duty on five different occasions

- 20070424:	For not being at appointed place of duty on nine different occasions

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.  Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications.

C.  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

Nondecisional issues: The Applicant seeks restoration of his grade/rank of E-5/Sergeant, which he earned prior to being separated as an E-3/Lance Corporal.

Decisional issues:  The Applicant contends that his discharge action was inequitable because: (1) He was denied reenlistment and placed on medical hold for three years, which is when his misconduct of record occurred; (2) It was unfair to retain him for 3 years due to medical issues; and (3) His eventual depression led to his misconduct of record.

Decision

Date:  20120209	         	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 three decisional issues related to the equity of the discharge; 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 enlistment record reflects entry into military service at age 18 with two waivers to enlistment and induction standards: pre-service illegal drug use (marijuana) and pre-service drug use (other).  As a function of his enlistment waiver process, the Applicant acknowledged - in writing - his complete understanding of the Marine Corps Policy Concerning the Illegal Use of Drugs on 24 July 2001.  He enlisted under an Aviation Mechanic Contract agreement for 5 years of active duty military service and received training as a Helicopter Power Plant Mechanic.  

The Applicant’s record of service documents his receiving two retention-counseling warnings during his enlistment period for excessive unauthorized absences in 2003 (five absences) and in 2007 (nine absences).  Additionally, the record of service documents that the Applicant’s Commanding Officer referred charges against the Applicant for trial by a Special Court-Martial for alleged violations of the Uniform Code of Military Justice (UCMJ): specifically, Article 80 (Attempts), Article 111 (Drunken operation of a motor vehicle), and Article 112(a) (Wrongful, use, possession, etc., of a controlled substance).  On 04 June 2009, charges were preferred against the Applicant for violating the preceding articles under the following specifications: 

•	Article 80 - Did wrongfully attempt to distribute some amount of marijuana on 04 Feb 2009 to an undercover NCIS agent 
•	Article 111 - 28 March 2009, did operate a motor vehicle under the influence of alcohol with a blood alcohol limit in excess of .08%; a violation of Virginia state law
•	Article 112(a) - Did between 1 April 2008 and 30 September 2008, wrongfully use cocaine on diverse occasions     
•	Article 112(a) - Did between 1 April 2008 and 28 February 2009, wrongfully distribute some amount of cocaine on diverse occasions
•	Article 112(a) - Did between 1 September 2008 and 31 March 2009, wrongfully use marijuana on diverse occasions 
•	Article 112(a) - Did between 1 March 2009 and 31 March 2009, wrongfully use Alprzolam (Xanax) on diverse occasions 
•	Article 112(a) - Did between 1 February and 28 February 2009, wrongfully distribute some amount of oxycodone (Percocet).

In order to avoid the punitive effects of a trial by Special Court-Martial, the Applicant submitted a request to the Separation Authority on 29 September 2009, requesting his administrative separation in lieu of trial by court-martial.  The Applicant’s military record contains a copy of the separation proceedings.  The Applicant requested administrative separation for the good of the service in order to avoid trial by court-martial; he was represented by an appropriately credentialed legal defense counsel throughout the separation proceedings.  The request for administrative separation was reviewed and recommended by the chain of command; on 23 November 2009, the Separation Authority approved the Applicant’s request and directed his discharge.

(Nondecisional Issue)  The Applicant seeks restoration of his grade/rank of E-5/Sergeant, which he earned prior to being separated as an E-3/Lance Corporal.  The NDRB is not authorized to restore rank/grade as requested; however, the Applicant may petition the Board for Correction of Naval Records (BCNR) using DD Form 149 regarding this issue.  When requesting a change, the Applicant should provide as much documentation as possible to support the request for change.  Further information can be found online at http://www.donhq.navy.mil/bcnr/bcnr.htm.  

(Decisional Issues)  ()  .  The Applicant contends that his discharge action was inequitable because: (1) He was denied reenlistment and placed on medical hold for three years, which is when his misconduct of record occurred; (2) It was unfair to retain him for 3 years due to medical issues; and (3) His eventual depression led to his misconduct of record.      

(Propriety)  In accordance with paragraph 1011 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN), an enlisted Marine on active duty, whose term of enlistment expires while suffering from disease or injury, incident to service and not due to their own misconduct, and who needs medical care or hospitalization, may be retained on active duty, with the Marine’s consent, until recovered to the extent that the Marine is able to meet the physical requirements for reenlistment or until it is determined that recovery to that extent is impossible.  Additionally, paragraph 1008 directs that a Marine may be retained for the Convenience of the Government beyond his established separation date when hospitalized, undergoing medical treatment, or is not physically qualified for release.  Moreover, a Marine on active duty who is hospitalized, undergoing medical treatment, or who is found not physically qualified for release will, with the Marine’s written consent, be retained on active duty until disposition of the case is made by medical authorities.  Only Headquarters Marine Corps (MMSR) (or the Secretary of the Navy) may defer or change an approved separation date for medical treatment.  In these cases, the command is required to ensure the Marine is on a valid enlistment/extension and must immediately notify the Commandant of the Marine Corps (MMSR) concerning both fitness for duty and the nature of the contract in effect.  When a separation is held in abeyance, pending disability evaluation, the command should employ the Marine to the fullest extent possible, as constrained by the injury or illness.

The Applicant’s record reflects that he was assigned a limited duty status by a local medical evaluation board incident to his injuries received while on active duty.  Additionally, the record documents that the Applicant extended his enlistment by two months just one week prior to the expiration of his active duty obligation in order to seek reenlistment or lateral move to a new occupational field.  Further, the record documents that the Applicant was placed in a temporary limited duty status and his expiration of active duty date was extended by Headquarters Marine Corps; he was assigned an indefinite ending date for his contract.  Due to injury incident to his service, the Applicant was retained beyond the expiration of his active service obligation in order to either fully recover or to be evaluated by the medical disability system.     

The Applicant’s military record contains a copy of the separation proceedings.  The Applicant requested administrative separation for the good of the service in order to avoid trial by court-martial; he consulted with, and was represented by, an appropriately credentialed legal defense counsel throughout the separation process.  This type of request for separation contains certain basic requirements - which must be satisfied - before receiving approval by the Separation Authority.  In this request, the Applicant clearly affirmed that his rights were explained to him thoroughly - to include his right to consult with qualified counsel, which he did.  Furthermore, the Applicant admitted his guilt to the charges preferred against him and further certified that he had a complete understanding of the negative consequences of his actions, the narrative reason for his separation, and the likely characterization of his service upon separation - Under Other Than Honorable Conditions (OTH).  The respondent acknowledged that if discharged with an OTH, it might deprive him of virtually all veterans’ benefits and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered, or the character of discharge received, may have a bearing.  The request for separation satisfied all the elements established by the MARCORSEPMAN; as such, the command accepted the Applicant’s request.  The NDRB determined that the Applicant was discharged properly from the Naval Service in accordance with chapter 6419 of the MARCORSEPMAN; accordingly, relief based on matters of propriety is not warranted.

(Equity)  Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Naval Service to maintain proper order and discipline.  Violation of Articles 111 and 112(a) of the UCMJ warrant administrative separation as serious offenses or punitive punishment through trial by court-martial, regardless of grade or time in service.  Moreover, these actions usually result in an unfavorable characterization of discharge or, at a maximum, a punitive discharge (Bad Conduct Discharge) with confinement for up to one year, if adjudicated, and awarded, as part of a sentence by a Special or General Court-Martial.  Moreover, the Applicant’s violation of Article 112(a) required mandatory processing for separation based on established service policy.  The Applicant acknowledged this policy - in writing - as a function of his enlistment waiver for pre-service illegal drug usage.  

The Applicant was retained beyond his original Expiration of Active Service (EAS) due to a medical injury received while in the line of duty.  The Applicant requested reenlistment, but was not medically qualified due to his limited duty status; however, he was retained beyond his EAS and was afforded an opportunity to recover and be restored to a full duty status, wherein he could then request reenlistment or separate.  The service record documents that the Applicant was continued beyond his EAS and retained in his normal duties as a flight line mechanic until he was relieved of those duties due to misconduct (chronic Unauthorized Absence) and a loss of confidence by his command.  He was counseled formally upon relief from his duties; subsequently, he was administratively assigned to the logistics section and placed in the billet of barracks manager.  While in this billet assignment, the record of service documents that the Applicant began a pattern of deliberate and repetitive misconduct related to alcohol and drug abuse, to include the selling of illicit drugs and prescription narcotics.  The Applicant was a noncommissioned officer, assigned to a position of special trust and confidence; he was aware of his extension due to medical hold and his obligations to conduct himself in accordance with the UCMJ and service expectations and standards.  The record reflects that he willfully and repetitively failed to do that.  The NDRB determined that the Applicant’s extension beyond his EAS did not alleviate the Applicant from conducting himself like a United States Marine; as such, relief is not warranted.  

Characterization of service at discharge is recognition of a Marine’s performance and conduct throughout 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.  However, 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.  Given the facts of the record and the information provided by the Applicant, the NDRB determined that the Applicant’s conduct - which forms the primary basis for determining the characterization of service - reflected one or more acts or omissions that did constitute a significant departure from the conduct expected of members of the Naval Service and brought discredit upon the armed services.  The NDRB further 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.  As such, the NDRB determined that the Applicant’s characterization of service at discharge was appropriate; an upgrade or change would be inappropriate.  Accordingly, relief, as requested, is denied.

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