ex-Pvt, USMC

Current Discharge and Applicant’s Request

Application Received:  20141029
Characterization of Service Received:  (corrected) 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)	20080822 - 20081228  COG	Active:	NONE

Pre-Service Drug Waiver:  YES

Period of Service Under Review:
Date of Current Enlistment:  20081229	Age at Enlistment:  24
Period of Enlistment:  4 Years  3 Months
Date of Discharge:  20120803	Highest Rank:  LANCE CORPORAL
Length of Service:  03  Year(s)  07  Month(s)  06  Day(s)
Education Level:  12	AFQT:  53
MOS:  0311
Proficiency/Conduct Marks (# of occasions):  NFIR / NFIR	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	Rifle EX NDSM SSDR  GCM  NATO GWOTSM  GWOTEM CAR 

Periods of UA:  NONE

NJP:  NONE

SCM:  1

- 20120405:	Article 92 (Failure to obey order or regulation; O/A 20120317, SNM found in possession of spice.)
	Sentence: RIR E-1 FOP CONF 30 days (20120405-20120427, 23 days)

SPCM:  NONE	

CIVIL ARREST:  NONE	

CC:  NONE

Retention Warning Counseling:  4

- 20100629:	For failure to meet minimum physical standards for the run portion of the PFT on 20100629.

- 20120216:	For deficiencies related to Art 92(Failure to obey order or regulation) for a hazing incident on 20111109.  SNM refused to sign counseling form.

- 20120328:	For drug possession O/A 20120316 when a search of the applicant’s vehicle and barracks room revealed packets of spice, excessive amounts of cough suppressants, and a glass smoking pipe.

- 20120405:	For deficiencies related to findings at a 20120405 Summary Court Martial for Art 92(Failure to obey order or regulation) for an incident O/A 20120316.

Administrative Corrections to the Applicant’s DD 214

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

	Block 24, Character of Service, should read: “UNDER OTHER THAN HONORABLE CONDITIONS”

The NDRB will recommend to the Commandant of the Marine Corps, MMSB-13, 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 contends that he was not allowed: a speedy trial, due process, the right to cross examine, out of court statement; first amendment, state and legal structure, human rights, legislative procedure, and rule of law.

Decision

Date:  20140416	         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 Applicant’s record of service included four 6105 counseling warnings and one summary court-martial (SCM) for Article 92 (Failure to obey order or regulation, possession of spice).  The Applicant also had a pre-service drug waiver for using marijuana fifteen times prior to entering the Marine Corps.  The Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 18 August 2008.  Based on the drug abuse violation, processing for administrative separation is mandatory.   When notified of administrative separation processing using the administrative board procedure on 29 March 2012, the Applicant initially exercised his right to request an administrative board and waived his rights to consult with a qualified counsel and submit a written statement.  On 10 April 2012, the SNM waived his right for an administrative board. 

Issue 1:  (Decisional) (Propriety)  RELIEF NOT WARRANTED.  The Applicant contends that he was not allowed: a speedy trial, due process, the right to cross examine, out of court statement; first amendment, state and legal structure, human rights, legislative procedure, and rule of law.  The Applicant provided three pages of unattributed legal definitions with his application, but did not provide any specific issues or additional documentation for the Board’s consideration.  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.  On or about 16 March 2012, the Applicant was found in possession of spice during a search of his room where spice packages, excessive amounts of cough suppressants and a glass smoking pipe were found.  The command notified the Applicant of administrative separation processing using the administrative board procedure on 29 March 2012, the Applicant exercised his right to request an administrative board and waived his rights to consult with a qualified counsel and submit a written statement.  The command decided to prefer Article 92 (Failure to obey order or regulation) charges at court martial.  On 03 April 2012, the Applicant signed an agreement for disposition of Article 92 allegations in which the Applicant agrees to enter a voluntary plea of guilty to the charges at NJP or summary court martial and waive his rights to an administrative discharge board provided that the Battalion Commander agreed not to refer the charges to a special or general court martial.  The agreement states that the Applicant may withdraw his plea of guilty at any time before the sentence or punishment is announced.  The agreement stated that the Applicant had discussed the terms of the agreement with defense counsel.  On 05 April 2012, the Applicant was tried at summary court martial and found guilty of Article 92 (Failure to obey order or regulation) for the possession of spice.  The Applicant was not represented by counsel at the court martial.  Following the court martial, the Applicant waived his rights to submit any written matters to the Convening Authority for consideration within seven days of the announcement of the sentence.  The Convening Authority approved the sentence to be executed on 05 April 2012.  On 10 April 2012, the Applicant signed a supplemental acknowledgement of rights to waive the administrative separation board per the pretrial agreement. The Judge Advocate reviewed the summary court martial on 07 June 2012 and found no irregularities.  The administrative separation package was forwarded to the Commandant of the Marine Corps on 23 July 2012, and the Applicant was separated on 03 August 2012 with the primary basis for the discharge listed as misconduct due to drug abuse.  The Applicant was discharged within five months of the incident.  The Applicant submitted no specific information or evidence to support his list of improprieties; therefore, the NDRB relied upon the presumption of regularity in the conduct of government affairs.  After a thorough review of the Applicant’s official records, supporting documents, and the facts and circumstances unique to this case, the NDRB discerned no impropriety in the discharge action.  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.

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