ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20120628
Characterization of Service Received:   
Narrative Reason for Discharge:   
Authority for Discharge:   MARCORSEPMAN 

Applicant’s Request:	Characterization change to: 
	Narrative Reason change to: FAILURE TO ADAPT

Summary of Service
Prior Service:
Inactive:	USMCR (DEP)	20050422 - 20050911  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20050912	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20090403	Highest Rank:  
Length of Service:    Year(s)    Month(s)  23  Day(s)
Education Level:  	AFQT:  36
MOS:  3051
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

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

NJP:  

- 20090115:	Article  (Wrongful use, possession, etc. of controlled substances, THC 19 ng/ml)
	Awarded:     Suspended:  

SCM:  

- 20080212:	Article  (Absence without leave, 2 specifications)
	Specification 1: 20071011-20071030
	Specification 2: 20071121-20071219 
	Sentence:  

SPCM:  	CC:  

Retention Warning Counseling:  

- 20090116:	For recent Battalion level NJP for Article 112a. Wrongful use, possession, etc, of controlled substances. On 20080115, you were charged and found guilty of violating Article 112a.

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.	The Applicant wants to be eligible for medical benefits.
2.	The Applicant contends he was fraudulently enlisted without a high school diploma or a General Educational Development (GED) certificate.
3.	The Applicant contends he was manipulated and treated unfairly. 

Decision

Date:  20130410		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 Board did complete a thorough review of the circumstances that led to  discharge and the discharge process to ensure  discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included  6105 counseling warning,   for  of the Uniform Code of Military Justice (UCMJ): Article  (Wrongful use, possession, etc. of controlled substances,  of marijuana), and   for  of the UCMJ: Article  (Absence without leave,  of 19 days, and 28 days).  The Applicant  a pre-service drug waiver for using marijuana  prior to entering the Marine Corps,  acknowledged  complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 21 April 2005.  Based on the Article 112a violation, processing for administrative separation is mandatory.  When notified of administrative separation processing using the  procedure, the Applicant   rights to consult with a qualified counsel, submit a written statement, and request an administrative board.  

:  (Nondecisional)  The Applicant wants to be eligible for medical benefits.  There is no requirement, or law, that grants re-characterization solely on the issue of facilitating access to VA benefits.  Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing medical, educational, or employment opportunities.  Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge.  As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief. 

:  (Decisional) ()  .  The Applicant contends he was fraudulently enlisted without a high school diploma or GED certificate.  The Applicant’s enlistment records indicate that on 29 August 2005, he was 1.5 credit hours short of the 22 credit hours he needed to graduate from high school, and he was enrolled to complete 6.5 credit hours during the rest of the scholastic year.  The Applicant began active service in the Marine Corps on 12 September 2005 and most likely did not complete enough credit hours to graduate from high school.  However, for the purposes of enlistment, he met graduation requirements as evidenced by his education enlistment code of 12J.  A high school diploma or GED can also be waived for entry into the armed forces.  Even if the Applicant could show misrepresentations in the recruitment process, such misrepresentations would neither amount to a justification nor to a defense for the Applicant’s own misconduct.  The Applicant had a marijuana waiver on entry into the Marine Corps and signed the Marine Corps zero-tolerance drug policy statement.  He had served for over three years in the Marine Corps and was fully aware of the consequences of his misconduct.  As an active duty service member, he was subject to the UCMJ until his separation.  Therefore, the NDRB determined his misconduct was willful, and he warranted the Under Other Than Honorable Conditions discharge.  Relief denied. 

Issue 3:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends he was manipulated and treated unfairly.  As discussed in Issue 2, he was appropriately enlisted into the U.S. Marine Corps, who fully knew he had no high school degree or GED certificate and waived that requirement.  Less than three years into the Applicant’s enlistment, he was found guilty at a Summary Court-Martial of violating UCMJ Article 86 for being UA for 19 days and 28 days.  Since 

neither period of UA was greater than 30 days, he did not commit a serious offense and so did not warrant administrative separation processing.  The Applicant was properly retained in the Marine Corps to continue his service.  Eleven months after his Summary Court-Martial, the Applicant was found guilty of violating UCMJ Article 112a for smoking marijuana, which requires mandatory processing for separation.  His command could have referred charges to a Special Court-Martial that could have resulted in a Bad Conduct Discharge, however, they chose to go the more lenient route of administratively separating him.  When notified of administrative separation processing using the  procedure, the Applicant   rights to consult with a qualified counsel, submit a written statement, and request an administrative board.  If he felt he had been manipulated or treated unfairly, he could have appeared before an administrative separation board to plead his case for retention or a more favorable discharge.  However, he waived that right and accepted his Under Other Than Honorable Conditions discharge.  After a complete review of the records and the Applicant’s statement, the NDRB determined he was properly enlisted into the Marine Corps, was treated fairly, was not manipulated, was afforded all of his rights, and was properly and equitably discharged Under Other Than Honorable Conditions for Misconduct (Drug Abuse).  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 Board 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 for additional information.

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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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