ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20151117
Characterization of Service Received:   
Narrative Reason for Discharge:   
Reenlistment Code:  
Authority for Discharge:   MARCORSEPMAN 

Applicant’s Request:	Characterization change to: 
	Narrative Reason change to: 
	
Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	19980410 - 19980914  	Active:	

Pre-Service Drug Waiver:  

Period of Service Under Review:
Date of Current Enlistment:  19980915	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20010428	Highest Rank:  
Length of Service:    Year(s)    Month(s)  14  Day(s)
Education Level:  	AFQT:  32
MOS:  6153
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle  Pistol LoA (x3) MM CoC  

Period of CONF:  

NJP:  

- 20000630:	Article 
	Awarded:       Suspended:      

- 20010328:	Article  2 specifications
	Specification 1: Possessing pyrotechnics and ammunition in BEQ on 20010327
	Specification 2: Possessing drug paraphernalia
	Awarded:       Suspended:      

SCM:    SPCM:     CC:  

Retention Warning Counseling:  

- 19990226:	For failure to maintain proper weight standards by exceeding you maximum weight limit.  You have been assigned to weight control for a period of 6 months concluding on 19990826  

- 19991123:	For assignment to weight control 

- 20000119:	For unauthorized absent from physical training on 19991223 

- 20000201:	For extension of weight control 

- 20000406:	For unsatisfactory PFT on 20000331 

- 20000710:	For fail to go to appointed place of duty, i.e. Remedial PT/PTP  

- 20001103:	For unsatisfactory PFT performance by failing the squadron PFT on 20001103  

- 20010329:	For failure to obey lawful order, which resulted in your recent NJP 

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:	

Types of Witnesses Who Testified

	Expert:		Character:	

Pertinent Regulation/Law

A.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 January 1997 until 31 August 2001.

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 his discharge is inequitable because he was notified his discharge would be a General (Under Honorable Conditions) discharge, but it was changed to an Under Other Than Honorable Conditions discharge.
2.	The Applicant contends his discharge is inequitable because it is based on drug paraphernalia found in his room, but he did not use drugs.
3.	The Applicant contends his service record warrants consideration for an upgrade of his discharge.
4.	The Applicant contends his post-service conduct warrants consideration for an upgrade of his discharge.

Decision

Date:  20160407		Location: Washington D.C.	 Representation: 

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

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  discharge and the discharge process to ensure  discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included  6105 counseling warnings; and   for  of the Uniform Code of Military Justice (UCMJ):  Article  (Absence without leave, failure to be at appointed place for duty), and Article  (Failure to obey order or regulation; 1 specification of possession of pyrotechnics, and 1 specification of possession of drug paraphernalia).   The Applicant  a pre-service drug waiver prior to entering the Marine Corps,  acknowledged  complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 13 August 1997.  Based on the Applicant’s possession of drug paraphernalia, his command processed him for administrative separation.  When notified of administrative separation processing using the  procedure, the Applicant   rights to consult with a qualified counsel, submit a written statement, and request an administrative board.   

:  (Decisional) ()  .  The Applicant contends his discharge is inequitable because he was notified his discharge would be a General (Under Honorable Conditions) discharge, but it was changed to an Under Other Than Honorable Conditions discharge.  In December 2000 the Applicant was recommended for administrative separation with a General discharge for reason of weight control failure.  However, the Separation Authority suspended the Applicant’s discharge for six months.  In April 2001, the Applicant’s Barracks room was inspected and drug paraphernalia was found.  The Applicant was found guilty at NJP for possession of drug paraphernalia, and was processed for administrative separation for reason of drug abuse with Under Other Than Honorable Conditions discharge.  The Applicant waived his rights to consult with a qualified counsel, submit a written statement, and request an administrative board; thereby, accepting his discharge.  The NDRB determined the Applicant’s discharge is proper and equitable as issued.  Relief denied. 

:  (Decisional) ()  .  The Applicant contends his discharge is inequitable because it is based on drug paraphernalia found in his room, but he did not use drugs.  The Applicant’s record shows that he was found guilty at NJP for possession of drug paraphernalia, and processed for administrative separation.  The Applicant waived his rights to consult with a qualified counsel, submit a written statement, and request an administrative board, thus accepting his discharge.  If the Applicant felt he was innocent of the offense of drug abuse, it was his obligation to exercise his rights and contest his guilt at the time.  There is no evidence in the Applicant’s record that he made any attempt to deny the charge of drug abuse, or that he did not accept his administrative separation for drug abuse, nor has the Applicant provided any evidence to the NDRB to support his issue.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  Relief denied. 

:  (Decisional) ()  .  The Applicant contends his service record warrants consideration for an upgrade of his discharge.  The Applicant contends that his three Letters of Appreciation, Meritorious Mast, and Certificate of Commendation show that his characterization of service warrants an upgrade.  However, the Applicant’s record also shows that he was counselled for failing to maintain Marine Corps weight standards, failed two Physical Fitness Tests (PFT), was counselled several times for violations of Article 86, was found guilty at NJP for violation of Article 86, and was found guilty at NJP for two violations of Article 92 that was the bases for his administrative separation.  The Applicant was administratively separated, not separated upon expiration of enlistment or fulfillment of service obligation.  The Characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation.  Based on the Applicant’s record of service, the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service, and the awarded characterization of service was warranted.  Relief denied.

4:  (Decisional) ()  .  The Applicant contends his post-service conduct warrants consideration for an upgrade of his discharge.  The NDRB considers 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.  The Applicant provided a personal statement, evidence of continuous employment, evidence of community involvement with his church, and two character references.  However, post-service conduct 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 provides a basis for a more thorough understanding of the performance of the Applicant during the period of service that is the subject of the discharge review.  The Board determined that the characterization of service received was appropriate considering the length of service and UCMJ violations.  Relief denied. 

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries and discharge process, the Board found   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  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, 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-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