ex- PFC, 

Current Discharge and Applicant’s Request

Application Received: 20160413
Characterization of Service Received:   
Narrative Reason for Discharge:   MISCONDUCT
Authority for Discharge:   MARCORSEPMAN 6210.5 [DRUGS] 

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

Summary of Service

Prior Creditable Service:
Inactive:	 	             	Active:	 

Period of Service Under Review:
Date of Enlistment:  20080804	Age at Enlistment:  
Period of Enlistment:   Years  16 MONTHS Extension
Date of Discharge:  20120802	Highest Rank/Rate:  CPL
Length of Service:   Year(s)     Month(s)   29 Day(s)
Education Level:  	AFQT:  35

Evaluation Marks (# of occasions):  Performance/Proficiency: 4.0 (9)   Behavior/Conduct: 4.1 (9)   
Fitness Reports: 

Awards and Decorations (per DD 214):	Rifle  NDSM GWOTSM LoA MM GCM  

Periods of UA:  NONE
Periods of CONF:  NONE
Other Time Lost per DD214:  NONE

NJP:  

- 20110929:	Article 86 (Absence without leave, etc.) 
	Article 91 (Insubordinate conduct toward warrant, noncommissioned, petty officer)	
	Awarded:       Suspended:        

- 20120525:	Article 112a (Wrongful use, possession, manufacture or introduction of controlled substance)
	Awarded:        Suspended:        

SCM:     SPCM:  

CIVIL ARREST:  

- 20110721:	Charges:  Domestic Violence

CC:  

Retention Warning Counseling:  

- 20090210:	For on or about 20090120, while aboard NAS Meridian, MS during a health and comfort inspection, it was found by Sgt T_ that you violated SqdnO P3000 by possessing alcohol in the barracks.  On 20090206, while aboard NAS Meridian, MS you failed on several occasions to follow direction from course instructor and class leader.   

- 20100330:	For you conducted an unauthorized civilian tour aboard MCAS Camp Pendleton.  You are aware that all tours are to be requested through the Operations Department to be approved only by the Operation Officer or Deputy Operation Officer.  On 20100325, you failed to direct the civilians through the correct steps to be approved and took it upon yourself to give them a tour of the flight line, a squadron’s hangar, and the air traffic control tower.    

- 20110729:	For on 20110721 at approximately 2205, you were arrested by Oceanside Police Department for domestic violence in the form of alleged physical contact by choking your wife.  All charges were dropped and you were issued a temporary restraining order by local authorities and a Military Protective Order by the Commanding Officer.  Your conduct off duty is unacceptable and will not be tolerated.  Subsequent to this incident of misconduct, you communicated to the chain of command that you had received a substantial monetary inheritance from your mother and that you owned several assets to include the home where you and your spouse currently reside.  Your chain of command later discovered that you purposely lied about your inherited finances, assets, and property owned.        

- 20111007:	For squadron level NJP for violation of Articles 86 and 91 on 20110929.

- 20120112:	For your lack of integrity, while administering a command scheduled Combat Fitness Test, you falsely documented a CFT score for a Marine that did not participate in the event.  When questioned about the erroneous score you failed to tell the truth.  

- 20120525:    For squadron level NJP for violation of Article 112a on 20120525.

- 20120716:    For violation of Article 86 and 91 on 20110929, violation of Article 112a on 20120525.

Types of Documents Submitted/reviewed

	DD 214:		Service/Medical Record:		Other Records:	
	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 IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications.

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

Applicant’s Issues

1.  The Applicant contends that his discharge was inequitable because he was denied an opportunity for a second drug test.
2.  The Applicant contends that he was treated unfairly by his command.  
3.  The Applicant contends he warrants an upgrade based on his in-service conduct prior to this incident.

discussion

Date:  20161130		Location:  WASHINGTON D.C.	Representation:  

The Naval Discharge Review Board (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 the pertinent standards of equity and propriety were met.  

The Applicant's record of service included:

Seven Retention Warning Counselling

  for  of the Uniform Code of Military Justice (UCMJ): 
	 - Article 86 (Absence without leave, etc.) , and Article 91 (Insubordinate conduct toward a warrant, 
                  noncommissioned, or petty officer)
               - Article 112a (Wrongful use, possession, manufacture or introduction of controlled substance), Amphetamine 359 ng
                 and Meth-amphetamine 389 ng

One Civil Arrest for:  Domestic Violence

Based on the  committed by the Applicant, the command administratively processed the Applicant for separation.  With an Article 112a violation, processing for administrative separation is mandatory.  The Applicant’s Administrative Separation package as well as separation code of HKK1 on his DD 214 Form indicates that the Applicant waived his right to appear before an administrative board.  The Applicant signed a Statement of Understanding on the Marine Corps Policy Concerning Illegal Use of Drugs on 17 March 2008.

Issue 1:  The Applicant contends that his discharge was inequitable because he was denied an opportunity for a second drug test.  A “three-test requirement” is part of the procedure conducted by the Naval Drug Screening Laboratory (NDSL) on a positive sample.  The NDSL goes through a very thorough four-level analysis procedure, which includes immunoassay and gas chromatography/mass spectrometry testing, to accurately test all specimens, ensuring each positive sample is screened, re-screened, confirmed, and all procedures have been followed before a message is released.  There is no requirement for a servicemember to receive additional tests after a positive result.  Based on the NDSL message, the NDRB determined the Applicant’s urinalysis was not a false positive brought about by an over-the-counter stimulant and that his discharge was proper and equitable.  

Issue 2:  The Applicant contends that he was treated unfairly by his command.  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 insufficient evidence in the record, nor has the Applicant produced sufficient evidence, to support the contention that the command treated him unfairly.  

The NDRB recognizes that serving in the all-volunteer Armed Forces is challenging but reflects a commitment to our Nation; thus, service members deserve to be recognized upon completion of their service.  One of the ways in which our service members are recognized is through the determination of their characterization of service.  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.

Issue 3:  The Applicant contends he warrants an upgrade based on his in-service conduct prior to this incident.  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.  An Under Other Than Honorable Conditions discharge 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.  Certain serious offenses warrant separation from the Naval Service to maintain 
proper order and discipline.  Violation of Article 112a is just such an offense which led to the Applicant’s separation from the 
Marine Corps.  The Applicant’s misconduct was inconsistent with the standards of discipline of the Naval Service and 
overshadows any in-service conduct prior to the time of the incident.  The NDRB found that the characterization of the 
Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances.

decision

After a thorough review of the available evidence, to include the Applicant’s issues, summary of 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  UNDER OTHER THAN HONORABLE CONDITIONS, the narrative reason for separation shall  MISCONDUCT with a corresponding separation code of HKK1, and the reentry code shall  RE-4B.  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of the 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/.  More information is available at http://www.secnav.navy.mil/mra/CORB/pages/ndrb/default.aspx.

Additional Reviews: After a document review has been conducted, former members are eligible for a personal appearance or telephonic 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, or http://www.secnav.navy.mil/mra/bcnr/Pages/default.aspx 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: Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code.  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-Traumatic Stress Disorder and/or Traumatic Brain Injury: For all claims involving PTSD and/or TBI, the NDRB’s review implemented the guidance set forth in the SECDEF Memorandum of 3 September 2014 (Supplemental guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder).  In accordance with U.S. Code, Title X, Section 1553 (d)(1) & d(2), the NDRB included a member who is a physician, clinical psychologist, or psychiatrist and accorded the case sufficient priority to achieve an expedited resolution and a final decision.

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.

Military Sexual Trauma: The Department of Veterans Affairs (VA) uses the term "military sexual trauma" (MST) to refer to experiences of sexual assault or repeated, threatening sexual harassment experienced while on federal active duty, active duty for training, or inactive duty training.  To get confidential one-on-one help please contact the MST Coordinator at your nearest VA Medical Center or Call Safe Helpline at 1-877-995-5247 or visit www.mentalhealth.va.gov/msthome.asp.

Reporting Military Sexual Trauma: To report a military sexual trauma, you can make an anonymous report to the Naval Criminal Investigative Service (NCIS) by Text or Online.  The NCIS Tip Line provides service members, veterans and civilians a safe, discreet and ANONYMOUS option to report criminal and force protection threats within the USN and USMC without concerns of retaliation.  To report a crime by Text: Text  274637 (CRIMES); Type “NCIS” at the top of the message; and include as much detail as possible to ensure your tip can effectively be investigated.  To send your ANONYMOUS Tip via the online, go to https://www.tipsubmit.com/webtipsNAV.aspx?AgencyID=840.

Suicide Prevention: Veterans in emotional crisis or their loved ones can call the free and confidential Veterans Crisis Line at 1-800-273-8255 (then press 1); or chat online at http://www.veteranscrisisline.net, or send a text message to 838255 to connect with a caring, qualified Veteran Affairs Responder who can deal with any immediate crisis.