ex-LCpl, USMCR

CURRENT DISCHARGE AND APPLICANT'S REQUEST

Application Received:  20140624
Characterization of Service Received: UNDER OTIIER THAN HONORABLE CONDITIONS Narrative Reason for Discharge: MISCONDUCT
Authority for Discharge: MARCORSEPMAN 6210.6 [COMMISSION OF A SERIOUS OFFENSE}

Applicant's Request:  Characterization change to: HONORABLE Narrative Reason change to: NONE REQUESTED

SUMMARY OF SERVICE
Prior Service:
Inactive:  NONE 	Active:  NONE

Period of Service. Under Review:
Date of Current Enlistment: 20040105 	Age at Enlistment:  18
Period of Enlistment:  8 Years  0 Months
Date of Discharge:  20111123 	Highest Rank: CORPORAL Length of Service:
Inactive:    00  Year(s)  05  Month(s) 21  Day(s)
Active: 	07  Year(s)  04  Month(s) 28  Day(s)
Education Level:  12 	AFQT: 53
MOS:  0621
Proficiency/Conduct Marks(#  of occasions): 4.4 (NFIR) I 4.4 (NFIR)  Fitness Reports: NOT APPLICABLE Awards and Decorations (per DD 214):   Rifle EX NDSM
Periods of UA/CONF: NONE

NJP:  NONE 	SCM:  NONE 	SPCM: NONE    CC: NONE Retention Warning Counseling: 2
- 20060315:    For failure to adhere to Marine Corps policy on drug abuse as evident by your urinalysis test conducted on
20060224. Your sample tested positive for Amphetamine at. a level of 694 ng/ml verified by Navy Drug
Lab JAXFL msg 101504ZMAR06 dtd 10 Mar 06. 

- 20080113:    For my approval for retention regarding administrative separation. On 20080110, the Commanding General, 4th MarDiv approved the recommendation to suspend my administrative discharge from the United States Marine Corps Reserve for a period of 6 months.

TYPES OF DOCUMENTS SUBMITIEDIREVIEWED

Related to Military Service:
DD214:	[X]	Service/Medical Record:     [X]	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:	[   ]

Key:	NFIR - Not found in record 	RESTR - Restriction	NJP - Nonjudicial punishment	SCM - Summary court-martial
	SPCM - Special court-martial	FOP - Forfeiture of pay	RIR - Reduction in rank	EPD - Extra duties
	CONF - Confinement	CC - Civilian conviction	CCU - Correctional Custody Unit	CBW - Confinement on bread and water

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT

APPLICANT'S ISSUES

1. The Applicant contends his discharge characterization was inequitable because other more senior Marines were involved and he was a young, foolish Marine at the time.
2.    The Applicant contends his discharge characterization was inequitable because he was under the impression that his
previously suspended discharge with a General characterization was to be enacted.
3.    The Applicant contends there were other less harsh disciplinary actions available to deal with his misconduct that would have been more appropriate given his 72 months of exceptional service and his discharge one day prior to his end of active service.
4.    The Applicant contends his civilian and post-service conduct is worthy of an upgrade.

DECISION

Date: 20141030 DOCUMENTARY REVIEW 	Location: WASHINGTON D.C. 	Representation: NONE 

By a vote of 5-0 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS.
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT.

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 his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety. The
Applicant's record of service included two 6105 counseling warnings and one competency review board.  The Applicant did not have a pre-service drug waiver prior to entering the Marine Corps, and acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 23 November 2003.  Based on the offense(s) committed by the Applicant, his command administratively processed him for separation three times for three separate narrative reasons.  Based on his original Article ll2a violation, processing for administrative separation is mandatory.   When notified of his final administrative separation processing using the administrative board procedure, the Applicant exercised his rights to consult with a qualified counsel, submit a written statement, and request an administrative board. The Applicant's final administrative separations board found, by a vote of 3-0, that the Applicant was guilty of the alleged misconduct, that separation was warranted, and that an UNDER OTHER THAN HONORABLE CONDITIONS discharge characterization was appropriate.

Issue 1: (Decisional) (Equity) RELIEF NOT WARRANTED.  The Applicant contends his discharge characterization was inequitable because other more senior Marines were involved and he was a young, foolish Marine at the time. The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has
the Applicant produced any evidence, to support the contention that other more senior Marines were involved in the same misconduct that resulted in his discharge.  The Applicant's statements alone do not overcome the government's presumption of regularity in this case.  Furthermore, while the Applicant may feel his youth and immaturity were the underlying causes of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record does not demonstrate the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

Issue 2: (Decisional) (Equity) RELIEF NOT WARRANTED.  The Applicant contends his discharge characterization was inequitable because he was under the impression that his previously suspended discharge with a General characterization was to be enacted.  The NDRB conducted an extensive review of the Applicant's record to determine the proper characterization of his discharge.  The record of evidence shows the Applicant tested positive for Amphetamines on a command urinalysis conducted on 24 February 2006 and was subsequently reduced at a competency review board on 15 March 2006.  The Applicant was notified of his command's intent to administratively separate him and he exercised his rights during separation proceedings.

The Applicant testified that his positive urinalysis was the result of taking his college roommate's Adderall under the false
advice that it was like taking a caffeine pill and was not an illegal substance. The end result of the Applicant's first
administrative separation board was a six month suspended separation with a GENERAL (UNDER HONORABLE
CONDITIONS) characterization of service as approved on 10 January 2008. The record annotates the nearly two year processing time for his administrative board was due, in part, to administrative oversight while his command was activated and deployed without him.

On 20 May 2008 the Applicant was notified by certified mail (#7004-1160-0003-7199-1580, received by the Applicant on 29 May
2008) of his command's intent to vacate his suspended sentence due additionally discovered misconduct within the period of his
suspended separation. Specifically his command discovered, and the Applicant acknowledged, his altering the content of drill notices and providing such altered documents to his civilian employer in order to avoid being required to attend work during those specific periods. On 7 June 2008 the record shows the Applicant began consultation with an attorney to contest the vacation of his administrative separation.

The record of evidence next shows the Applicant was provided a new administrative separation notification for a pattern of misconduct discharge on 27 October 2009 for both his prior use of amphetamines and his alteration of official military documents under the UCMJ: Article 123 (Forgery). This notification included the specification that the least favorable characterization he could receive was an UNDER OTHER THAN HONORABLE CONDITIONS discharge characterization. The Applicant fully exercised rights for this notification.

The record indicates that the Applicant was able to successfully argue that a discharge under a pattern of misconduct was inappropriate and his command re-notified him of their intent to administratively separate him for the commission of a serious offense with an UNDER OTHER THAN HONORABLE CONDITIONS discharge characterization on 16 July 2010. The Applicant fully exercised all of his rights a third time. The Applicant's administrative board was held on 12 October2011 and the board members unanimously found that the misconduct/commission of a serious offense had occurred, that separation was warranted, and that the UNDER OTHER THAN HONORABLE CONDITIONS discharge characterization was appropriate. The Applicant filed a letter of deficiency on 18 October 20 11 concerning his administrative board proceedings which was legally reviewed by the Staff Judge Advocate, Marine Forces Reserve. The administrative board's conduct, composition, and decision was found to be sufficient in law and tact and the Commanding General, Marine Forces Reserve, approved the Administrative Board's recommendations as issued on 23 November 2011. Given the both the facts found in the Applicant's record and the over three years of legal maneuvering engaged in by the Applicant to void his vacated discharge and remain a member of the Marine Corps Reserve the NDRB finds this issue to be completely without merit Relief denied

Issue 3: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends there were other less harsh disciplinary actions available to deal with his misconduct that would have been more appropriate given his 72 months of exceptional service and his discharge one day prior to his end of active service. While other disciplinary measures may have been available and used for Marines committing the same or similar offenses, each case must stand on its own merits. The Commanding Officer is allowed to consider matters for extenuation and mitigation unique to each individual. Therefore no two cases, no matter how similar, are guaranteed to receive the same punishment.

The NDRB reviews the propriety and equity of an Applicant's discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant's discharge is inconsistent with standards of discipline of the Naval Service. 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 Navy. A preponderance of the evidence reviewed supports the conclusion that the Applicant committed a serious offense, that separation from the Naval Service was appropriate, and that an UNDER OTHER THAN HONORABLE CONDITIONS discharge characterization was warranted. Relief denied.

Issue 4: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends his civilian and post-service conduct is worthy of an upgrade. The NDRB is authorized to consider post-service factors in there-characterization of a discharge. However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question. Besides the Applicant's statement on the DD Form 293, he failed to provide any documentary evidence on his behalf for post-service consideration.
The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum with the
recognition that 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. Without post-service documentary evidence, the Board determined the awarded characterization of service shall remain Under Other Than Honorable Conditions. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant's summary of service, service record entries, and discharge process, the Board found the discharge was proper and equitable. Therefore, the awarded characterization of service shall remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain MISCONDUCT.

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 for additional information.

Pertinent Regulation/Law

A.  Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), 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 II, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.

C.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 86. 

Key:	NFIR - Not found in record 	RESTR - Restriction	NJP - Nonjudicial punishment	SCM - Summary court-martial
	SPCM - Special court-martial	FOP - Forfeiture of pay	RIR - Reduction in rank	EPD - Extra duties
	CONF - Confinement	CC - Civilian conviction	CCU - Correctional Custody Unit	CBW - Confinement on bread and water

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