ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20080825
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)	20060703 - 20061009  	Active:	

Period of Service Under Review:
Date of Enlistment:  20061010	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20070308	Highest Rank:  
Length of Service:    Years    Months   29  Days
Education Level:  	AFQT:  93
MOS:  9900
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle  

Periods of UA/CONF:  

NJP:  
- 20070208:  Article 112a (Drug use, marijuana)
                     Awarded:    Suspended:  

SCM:      SPCM:      CC:  

Retention Warning Counseling:  1

- 20070208:  For violation of Article 112a, wrongfully using a controlled substance.

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:		Substance Abuse:			Criminal Records:	
	Family/Personal Status: 		Community Service:  		References:  		
              Additional Statements: 
                             From Applicant:  	From Representation:         	From Congress member:    

                    Other Documentation:  

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

Applicant’s Issues

1.  Pre-service drug use. 
2.  Additional alleged positive urinalysis.
3.  Administrative separation proceedings letter predates the drug lab report by 3 days.
4.  Administrative proceeding insufficient in law and fact; not notified of his rights.
5.  Violation of Article 31, UCMJ right advisement prior to questioning.
6.  Discouraged from seeking advice of counsel.
Decision

Date:  20090205		Location: Washington D.C.	 Representation: 

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  MISCONDUCT.

Discussion

Issues 1-2:  ()  .  The Applicant contends the separation authority considered his pre-service drug use and additional alleged positive urinalysis when determining his characterization of service as under other than honorable conditions.  In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant’s record of service was marred by one NJP for violation of the Uniform Code of Military Justice (UCMJ): Article 112a (Drug use, wrongful use of a controlled substance, marijuana).  Violation of Article 112a is one such offense requiring mandatory separation regardless of time in service, grade or record of service.  Violations of this policy result in, at a minimum, mandatory processing for an administrative separation which 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 Applicant returned home from boot camp and illegally used marijuana.  Upon reporting to the School of Infantry (SOI) he was part of a routine command urinalysis which resulted in a positive reading for illegal drug use.  As such, the command initiated steps to discharge the Applicant, which is standard procedure.  They did not pursue a punitive discharge but instead opted for an administrative discharge.

As for the issue regarding characterization, the Commander’s letter (ADMINISTRATIVE SEPARATION PROCEEDING IN THE CASE OF PRIVATE P. A. C. USMC), Marine Corps Base, Camp Lejeune, states, “In evaluating the potential for further service, I have considered the pre-service drug waiver; however, I have not considered it in determining characterization of service.”   This contradicts the Applicant’s argument of the command using his pre-service drug admission against him.  While the commander looked at his pre-service drug admittance to help determine potential further service, it was not used in the discharge characterization:  This process is established policy and allowed under the law.  The Applicant presents no further documentation or evidence in support of his claim.  Additionally, the Marine Corps has the right to discharge members who illegally use drugs, even for a first time violation.  The Applicant must understand he was assigned to an infantry training command where violations of the UCMJ are met with swift and consistent punishment.  There is no evidence in the Applicant’s record which indicated the SOI command used any illegal drug use information from the moment of truth or while the he was as boot camp in determining the discharge characterization; quite the contrary, as the commanding officer clearly points out in the letter.  The Applicant’s positive test results for illegal drugs upon check in to SOI was the catalysis for his discharge.  The administrative separation letter referenced above simply provides the fact the Applicant had pre-service drug use, which may or may not have included a positive urinalysis once at boot camp, but most definitely contained in-service drug use after boot camp.  The NDRB determined the awarded discharge characterization based on the Applicant’s positive urinalysis while at the SOI was appropriate and an upgrade would be inappropriate. 

Issue 3:  ()  .   The Applicant contends the administrative separation proceeds letter predates the drug lab report by 3 days.  In reviewing the letter from the Commanding Officer, Headquarters and Support 

Battalion, it was noted there was an administrative error on the date the letter was drafted.  However, within the letter it shows the correct date of the drug lab report, which precedes the original Battalion CO’s letter.  This administrative error was not prejudicial to the Applicant nor did it serve as mitigating factor to his drug use.  The NDRB determined the outcome of the Applicant’s discharge was not affected by this minor error.  The awarded discharge characterization was appropriate for his illegal drug use while at SOI and an upgrade would be inappropriate.   

Issue 4:  ()  .   The Applicant contends the administrative proceedings were insufficient in law and fact and he was not notified of his rights.  The NDRB noted there was an error on the administrative separations documentation issued to the Applicant from the Administrative Law section and that several documents pertaining to another Marine, and not the Applicant, were included.  This error notwithstanding, it does not change the fact the Applicant signed the Unit Punishment Book (UPB) and acknowledged his rights by doing so during his NJP process.  The fact the Applicant signed the UPB negates the argument he was not notified of his rights.  Nothing in the Applicant’s record indicates the command took action exceeding the normal administrative procedures used to discharge any member under the same conditions and, with the minor typographical date errors noted in Issue 3 above, all was within established procedures and guidelines.  These minor errors do not change the fact he used illegal drugs prior to reporting to the SOI and was detected based on a routine initial command urinalysis conducted upon reporting in.  The Applicant admits in writing he used illegal drugs while on leave from boot camp and the command had a confirmed drug urinalysis message documenting positive test results upon his SOI check in.  The NDRB determined the awarded discharge was appropriate for his illegal drug use detected while at SOI and an upgrade would be inappropriate. 

Issues 5-6:  ()  .  The Applicant contends he was discouraged from seeking advice of counsel and his Article 31 rights were violated.  There is no evidence in the record or provided by the Applicant to support this allegation.  Once again, evidence reflects he signed the Unit Punishment Book acknowledging his rights.  The evidence also indicates he was advised of his right to consult a counsel before his NJP and he acknowledged this right.  There is no documented evidence in the record to indicate the Applicant’s First Sergeant improperly discussed or provided faulty counsel to the Applicant upon learning of his positive urinalysis results.  The Applicant was provided the opportunity to present his case before an administrative board, but he waived that right also; thus accepting the discharge recommended in the letter of notification.  As addressed in Issue 1, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant has failed to provide sufficient documentation which demonstrates the command failed to ensure his rights were protected or he was denied legal counsel.   

After a thorough review of the available evidence, to include the Applicant’s Summary of Service,   Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found  

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.

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 112a (Drug use).

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe that 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:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the 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.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’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 Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board 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 subsequently is processed for an administrative involuntary separation or is referred to a court-martial for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, 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 Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

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 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