ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20120711
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)	20060210 - 20060305  	Active:	

Pre-Service Drug Waiver:  

Period of Service Under Review:
Date of Current Enlistment:  20060306	Age at Enlistment:  
Period of Enlistment:   Years   Month
Date of Discharge:  20091022	Highest Rank:  
Length of Service:    Years    Months  17  Days
Education Level:  	AFQT:  54
MOS:  4341
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

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

Periods of CONF:  

NJP:  

- 20070829:	Article  (Failure to obey order or regulation by using a GOV vehicle for personal needs)
	Article 108 (Military property of United States - Loss, damage, destruction, or wrongful disposition by using GOV vehicle for personal needs) 
	Article  (Drunken or reckless operation of a vehicle, aircraft, or vessel - by driving recklessly, almost hitting a woman, and running several stop signs)
	Article  (General Article - used another Marine’s CPV code to check out a GOV to try and cover his actions; admitted to drinking alcohol while in possession of the GOV)
	Awarded:     Suspended:  

- 20090710:	Article  (Wrongful use, possession, etc. of controlled substances, to wit:  marijuana) 
	Awarded:     Suspended:  

- 20090828:	Article  (Absence without leave, on or about 20090822, failure to go to appointed place of duty, to wit:  restriction check in at 0800)
	Article  (Failure to obey order or regulation by not reporting to his restriction check-in as ordered)
	Awarded:   Suspended:  

SCM:     			SPCM:     		CC:  

Retention Warning Counseling:  

- 20070911:	For Battalion level NJP for violation of Articles 92, 108, 111, and 134 of the UCMJ held on 20070829.  Operated a motorized government vehicle while under the influence of alcohol and recklessly drove the government vehicle off of the Marine Corps Base Camp Pendleton.

- 20090721:	For urinalysis dated 20090622 at which you tested positive for marijuana.  You were subsequently held responsible for your action at Battalion level non-judicial punishment on 20090710.

- 20090902:	For failure to report to your appointed place of duty, which was your restriction muster with the Battalion Officer of the Day.  You were subsequently held responsible for your action at Battalion level non-judicial punishment on 20090828. 

Administrative Corrections to the Applicant’s DD 214

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

	  “”

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.	The Applicant seeks an upgrade to qualify for the Post 9/11 G.I. Bill.
2.	The Applicant seeks an upgrade to enhance employment opportunities.
3.	The Applicant contends he did not use marijuana, was not permitted to take another urinalysis, and his chain of command told him to plead guilty at Nonjudicial Punishment (NJP) to avoid court-martial and be retained in the Marine Corps.
4.	The Applicant contends his post-service conduct warrants consideration for an upgrade.

Decision

Date:  20130509		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 warnings and  NJPs for  of the Uniform Code of Military Justice (UCMJ): Article  (Absence without leave, , on or about 20090822, failure to go to appointed place of duty, to wit: restriction check in at 0800), Article  (Failure to obey order or regulation, : By using a GOV vehicle for personal needs and By not reporting to his restriction check-in as ordered), Article 108 (Military property of United States - Loss, damage, destruction, or wrongful disposition, , by using GOV vehicle for personal needs), Article  (Drunken or reckless operation of a vehicle, aircraft, or vessel, , by driving recklessly, almost hitting a woman, and running several stop signs), Article  (Wrongful use, possession, etc. of controlled substances, , marijuana), and Article  (General Article, , used another Marine’s CPV code to check out a GOV to try and cover his actions; admitted to drinking alcohol while in possession of the GOV).  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 09 February 2006.  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.  The Applicant appeared before an Administrative Separation Board (ASB) on 22 September 2009.  The ASB determined by a unanimous vote, 3-0, that the preponderance of the evidence supported the notification for separation (Misconduct - Drug Abuse and Misconduct - Pattern of Misconduct), and the ASB recommended that the Applicant should be separated from the Marine Corps Under Other Than Honorable Conditions.  The command and Separation Authority approved the ASB’s recommendations and discharged him accordingly. 

:  (Nondecisional)  The Applicant seeks an upgrade to qualify for the Post 9/11 G.I. Bill.  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.

:  (Nondecisional)  The Applicant seeks an upgrade to enhance employment 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.

:  (Decisional) ()  .  The Applicant contends he did not use marijuana, was not permitted to take another urinalysis, and his chain of command told him to plead guilty at NJP to avoid court-martial and be retained in the Marine Corps.  The Applicant did not have the right to provide another sample for a second urinalysis.  The positive urinalysis for THC provided a preponderance of the evidence that he committed Misconduct - Drug Abuse, and second tests are not relevant as they do not disprove the wrongful use of a controlled substance.  The Applicant specifically contends that his immediate superiors told him that if he pleaded innocent at his NJP, then the battalion commander would take him to a court-martial.  This contention makes no sense.  Per documents that he signed in his official service record, he was afforded the right to consult with qualified counsel and was afforded the right to refuse NJP and appear before a court-martial.  Whether or not he pled guilty or innocent at NJP, his positive urinalysis was all the battalion commander needed to find him guilty of Misconduct - Drug Abuse.  The battalion commander gained no advantage with a guilty plea, and so the NDRB finds it implausible that the battalion commander would threaten the Applicant with a lengthy, costly court-martial where there is a higher burden of proof on the Government’s part to show that the Applicant wrongfully used a controlled substance.  The Applicant, however, voluntarily accepted NJP and refused a court-martial.  The Applicant also contends his battalion commander promised that he would be retained until his End of Active Service (EAS) and receive an Honorable discharge if he pled guilty at NJP and stayed out of trouble until his EAS.  Again, the NDRB finds this to be implausible as it was not the battalion commander’s decision as to whether or not he could stay in the Marine Corps.  Violation of Article 112a is one such offense requiring mandatory processing for administrative separation regardless of grade, performance, deployments, or time in service.  This usually results in an unfavorable characterization of 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 opted instead for the more lenient administrative discharge.  It is ultimately the Separation Authority’s decision as to whether the Applicant would have been retained.  In this case, the Separation Authority was the Commanding General, Marine Corps Recruit Depot/Western Recruiting Region.  When notified of administrative separation processing, the Applicant consulted with counsel and elected to appear before an Administrative Separation Board, which found unanimously that the preponderance of the evidence supported the bases for separation (Misconduct - Drug Abuse and Misconduct - Pattern of Misconduct) and recommended the Applicant be discharged Under Other Than Honorable Conditions.  After a review for propriety by the Separation Authority’s Staff Judge Advocate, the Separation Authority ordered the Applicant to be discharged for Misconduct - Drug Abuse.  After a complete review of the Applicant’s statement, a letter from a former fellow Marine, and his service record, the NDRB determined he received full due process and all of his applicable rights and further determined his discharge was warranted, proper, and equitable.  Relief denied.

Issue 4:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends his post-service conduct warrants consideration for an upgrade.  The NDRB considers 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.  The Applicant provided a personal statement and one character reference letter from a post-service employer.  The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum, however, completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration.  The Board determined that the documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration.  The characterization of service received was appropriate considering the length of service and UCMJ violations.  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.  After a personal appearance hearing in front of the NDRB in Washington, DC or after fifteen years from his discharge, he may apply to the Board for Correction of Naval Records for further reviews.  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