ex-LCpl, USMC

Current Discharge and Applicant’s Request

Application Received:  20140910
Characterization of Service Received:  (per DD 214) UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge:  (per DD 214) MISCONDUCT
Authority for Discharge:  (per DD 214) MARCORSEPMAN 6210.5 [DRUGS]

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

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	20070622 - 20080706  COG	Active:	NONE

Pre-Service Drug Waiver:  NO

Period of Service Under Review:
Date of Current Enlistment:  20080707	Age at Enlistment:  18
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  20110913	Highest Rank:  CORPORAL
Length of Service:  03  Year(s)  02  Month(s)  07  Day(s)
Education Level:  12	AFQT:  57
MOS:  1391
Proficiency/Conduct Marks (# of occasions):  4.3 (6) / 4.4 (6)	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	Rifle SS NDSM GWOTSM ACM (3) SSDR NATO LoA

Periods of UA/CONF:  NONE
 
NJP:  1

- 20110414:	Article 92 (Failure to obey order or regulation; O/A 20110404, SNM disobeyed a direct order by having possession of a controlled substance)
	Article 112a (Wrongful use, possession, etc. of controlled substances, Cocaine; O/A 20110404, SNM used a controlled substance.)
	Awarded: FOP RIR RESTR EPD  Suspended:  NONE  

SCM:  NONE		  SPCM:  NONE		CC:  NONE

Retention Warning Counseling:  2

- 20110414:	For Article 92 (Failure to obey order or regulation) and Article 112a (Wrongful use, possession, etc. of controlled substance) 

- 20110425:	For drug abuse and advisement of being processed for administrative separation 

NDRB Documentary Review Conducted (date):	20140205
NDRB Documentary Review Docket Number:	MD13-01443
NDRB Documentary Review Findings:		Proper as issued and that no change is warranted.

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 contends the positive urinalysis was invalid because there was new evidence of a broken seal.
2.    The Applicant contends the temporary storage time and urine storage procedures were questionable and should invalidate the results of the urinalysis.  
3.	The Applicant contends that determination of misconduct was contrary to law i.e. Article 112a of UCMJ.  
4.    The Applicant contends that his entire period of service was not considered in his characterization of discharge.  

Decision

Date:  20140514	  PERSONAL APPEARANCE HEARING   Location: Washington D.C.  Representation: Civilian Counsel

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 completed a thorough review of the circumstances that led to the 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 nonjudicial punishment (NJP) for violations of the Uniform Code of Military Justice (UCMJ):  Article 92 (Failure to obey order or regulation) and Article 112a (Wrongful use, possession, etc. of controlled substances).  Based on the offenses committed by the Applicant, his command administratively processed him for separation.  Based on the Article 112a violation, processing for administrative separation is mandatory.  When notified of 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.   

Issue 1:  (Decisional) (Propriety)  RELIEF NOT WARRANTED.  The Applicant contends the positive urinalysis was invalid because there was new evidence of a broken seal.  A chemical analysis report issued by the Navy Drug Screening Laboratory (NDSL) San Diego on 27 March 2013 noted that the tamper proof tape was broken on the sample analyzed in March 2011.  A letter dated 01 December 2014 provided by the Judge Advocate who represented the Applicant during the separation proceedings attested that if he had knowledge of a broken seal, it would have altered his defense.  When contacted by the NDRB, the NDSL representative who signed the report in 2014 stated that there was an administrative error on the cover pages for that report.  He stated that per the original DD2624 form no discrepancies were noted by the lab and the tamper proof tape was not broken prior to analysis in 2011.   

Through counsel, the Applicant argues the legal principal of estoppel should prevent the NDRB from using NDSL’s letter of 2014 that confirmed that the 2013 Report had a Scribner’s error that the seal was broken rather than correctly stating the seal was “not” broken.  However, all of the decisions leading to the Applicant’s separation on 12 September 2011 were based on a report issued to the command on 31 March 2011 from the NDSL.  According to the Judge Advocate, an expert witness from the laboratory also testified on the laboratory results during the administrative board.  The NDSL confirmed that the original report used during the disciplinary actions and separation was accurate and indicated there was no broken seal nor any other discrepancies annotated on the sample’s DD2624.  Also if the seal had been broken, that would have been disclosed by the expert witness during the administrative board.  Therefore, the NDRB finds that the 2013 Report had a Scribner’s error and that the Applicant failed to provide sufficient evidence the seal was broken.  Relief denied.
 
Issue 2:  (Decisional) (Propriety)  RELIEF NOT WARRANTED.  The Applicant contends the temporary storage time and urine storage procedures were questionable and should invalidate the results of the urinalysis.  Specifically, the Applicant alleges that a temporary storage period of eight days from 16 March 2011 to 24 March 2011 was questionable because the reason and method of storage were not annotated on the DD2624 form.  The Marine Corps Personal Services Manual MCO P1700.24B Appendix E which governs the Marine Corps urinalysis program was in effect at the time.  The manual does not set a timeline for the shipping of samples but states that “Urine samples do not require refrigeration or freezing before shipment, but the specimen should be shipped as soon as possible after collection or provided with incontestable security and chain of custody measures while awaiting shipment.”   The Applicant contends that the delay caused a breach in security and the reason for the delay and method of storage was not annotated on the DD2624.  The instructions for completing the DD2624 in the MCO P1700.24B do not require that the reason for storage or the method of storage be annotated on the form.  Per OPNAVINST 5350.4D, samples are to be stored under lock and key with access limited to only the person listed on the DD2624.  Commands are required to have periodic inspections to ensure procedures are in compliance with regulation.  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 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 substantial evidence, to support the contention that the sample was compromised.  Relief denied. 

Issue 3:  (Decisional) (Propriety)  RELIEF NOT WARRANTED.  The Applicant contends that determination of misconduct was contrary to law i.e. Article 112a of UCMJ.  The Counsel’s statement and testimony presented at the hearing contends that ingestion is not wrongful if it is done without knowledge.  The statement cites that the letter provided by the Judge Advocate noted that the low metabolite level of the urine sample was consistent with environmental, non-intentional ingestion of the chemical.  The letter from the Judge Advocate actually recounts that the NDSL expert witness stated that “he had a very low nanogram level for his urinalysis, an amount that could have been consistent, according to the Government’s drug lab expert, with environmental (unknowing/incidental) exposure.”  The language “could have” indicates a possibility but does not propose that unintentional exposure was the most plausible explanation.  In the final confirmation test using gas chromatography and mass spectrometry, the urine tested at 148 nanograms and the minimum threshold for a positive result is 100 nanograms.  The NDRB did not find that the Applicant produced substantial evidence to support the contention that the positive test was due to unintentional exposure.  Relief denied. 

Issue 4:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends that his entire period of service was not considered in his characterization of discharge.  The Applicant provided information from his assignments including a combat deployment to Afghanistan as well as additional duty as unit Guidon/flag bearer.  Five personal letters of recommendation attest to the good character of the Applicant and employment verification documents were also provided for consideration.  The Applicant’s period of service was clearly considered during the administrative separation board.  All three members voted that the preponderance of evidence supported the drug use; however, the characterization of service as Under other than Honorable was recommended with a vote of two to one, and the resulting minority report specifically cited that the one voting member recommended a General characterization based on the performance for the entire three years of service.  The NDRB recognizes that serving in the military is challenging.  Most servicemembers, however, serve honorably and therefore earn their Honorable discharges.  In fairness to those Marines and Sailors who served honorably, Commanders and Separation Authorities are tasked to ensure that undeserving servicemembers receive no higher characterization than is due.  The NDRB found the characterization of the Applicant’s discharge was equitable and 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, service record entries, and discharge process, the Board found the discharge was proper and equitable at the time of discharge.  Therefore, the awarded characterization of service shall remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain MISCONDUCT.

The Applicant is no longer eligible for additional reviews or hearings by the NDRB.  The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149.  Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm.

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