ex- SSgt, USMC

Current Discharge and Applicant’s Request

Application Received: 20200915
Characterization of Service Received:   
Narrative Reason for Discharge:   MISCONDUCT (DRUG ABUSE)
Authority for Discharge:   MARCORSEPMAN 6210.5 [DRUGS] 

Applicant’s Request:	Characterization change to:	
Narrative Reason change to: REQUESTED BUT NOT SPECIFIED
Reentry Code change to: NONE REQUESTED

Summary of Service

Prior Creditable Service:
Inactive:			Active:	 20080714 - 20170824  

Period of Service Under Review:
Date of Enlistment:  20170825	Age at Enlistment:  
Period of Enlistment:  4 Years   Extension
Date of Discharge:  20200821	Highest Rank/Rate:  SSgt
Length of Service:  02 Year(s)  11 Month(s)  28  Day(s)
Education Level:  12	AFQT:  36
Deployment/Operation: 

Evaluation Marks (# of occasions):  NOT APPLICABLE 
Fitness Reports: 

Awards and Decorations (per DD 214):	Rifle EX Pistol MM NMCAM (3) GCM (3) NDSM GWOTEM GWOTSM SSDR OSR (3) MSG LoA (5) MM 

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

NJP:  NONE   SCM:     SPCM:     CIVIL ARREST:     CC:  

Retention Warning Counseling:  3

- 20190206:	For violation of Article 92.  Specifically, a preliminary inquiry confirmed that you used profanity toward recruits.

- 20200330:	For violation of Article 112a and your refusal to accept NJP.  Specially, on 20200304, you tested positive for THC (72ng) on a urinalysis.

- 20200410:	For Relief for Cause from Drill Instructor Duty due to loss of trust and confidence in your ability to effectively perform in a recruit supervisory or training role.  This relief was approved on 20200407 and your 0911 MOS will be voided.

Administrative Corrections to the Applicant’s DD 214

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

	  “2017 08 25”
	  “02 11 27”
  “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 20080714 UNTIL 20170824”
	  “MARCORSEPMAN 6210.5”
	
The NDRB will recommend to Commander, Navy Personnel Command or Commandant of the Marine Corps that the DD 214 be corrected as appropriate.

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:	
 
Types of Witnesses Who Testified

	Expert:  			Character:    

	Witness E-1:			Witness C-1:	
	Witness E-2:			Witness C-2:

Pertinent Regulation/Law

A.  The Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 26 November 2013 until present, Paragraph 6210.5, MISCONDUCT.

B.  Secretary of the Navy Manual 5420.1 of 29 September 2020 (Standards for the execution of the Naval Discharge Review Board).

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

Applicant’s Issues

1.	The Applicant contends his discharge is improper and inequitable because he is not guilty of drug abuse and the methods in which the Department of Defense uses to test for evidence of controlled substance use is flawed and unreliable.

Discussion

Date:  20210325		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:

Issue 1:  The Applicant contends his discharge is improper and inequitable because he is not guilty of drug abuse and the methods in which the Department of Defense uses to test for evidence of controlled substance use is flawed and unreliable.

In support of this issue, the Applicant provided a personal statement in which he discussed his personal and professional affairs, his alleged drug use, and the conduct of his Administrative Separation (ADSEP) Board.  Upon learning that he tested positive for THC on a command urinalysis, the Applicant was entirely caught off guard as he never used drugs and would not put himself in a predicament in which he would be around illegal drug use.  The Applicant, a Drill Instructor, further stated his ethics concerning drug use were instilled at him at a young age and the Marine Corps strengthened his stance on drugs.  He further indicated that he would never do anything like this to bring discredit on himself, his family, or the Marine Corps.  Upon learning that he tested positive for THC, the Applicant sought out counsel and advice from peers and seniors.  He was advised to get a hair follicle test that would re-determine the presence of THC within his system.  This hair follicle test yielded a negative result for THC and other controlled substances, and this evidence was provided at his ADSEP Board.  The Applicant’s wife, a former Army service member, provided a statement to support his NDRB petition.  In this statement, she asserted that she made career decision with her husband to separate from the Army in order for her to raise their family.  She has known the Applicant for over five years and indicated he would never do anything to jeopardize his career or family.  She further stated that she doesn’t believe the Applicant had a fair ADSEP Board and many individuals spoke on his behalf at the ADSEP Board.  She closed with her husband did not do drugs and never has.  With his petition, the Applicant provided evidence of in-service records and a hair follicle test.  At the request of the NDRB recorder and in advance of this Document Review Hearing, the Applicant additionally provided a full record of his ADSEP Board proceedings.

In review of the evidence of record, the NDRB found the Applicant has a previous period of Honorable service and his total time in service is approximately 11 years.  The period of service that is subject to discharge review is one year and six months.  During this period of service, the Applicant received average to above average fitness reports, was a recently promoted Staff Sergeant, and was assigned as a Drill Instructor.  The NDRB noted the Applicant married a military spouse during this period of service.  The Applicant had largely performed well as Drill Instructor, yet he was provided a Retention Warning Counseling (RWC) for using profanity toward recruits.  While still serving in the capacity of a Drill Instructor, he underwent a urinalysis in March 2020 which later reported a positive result for THC.  Following this positive urinalysis result, the Applicant was provided two additional RWCs that cited the urinalysis results and his associated relief for cause as Drill Instructor due to loss of trust and confidence.  The Applicant provided a rebuttal to the first RWC and stated that he was shocked and caught off guard by the result.  He added that he has researched ways to prove his innocence and he sought out a hair follicle test that returned a negative result for THC and other controlled substances.  He closed his rebuttal by stating that he would never do anything to jeopardize his career.  Given the Applicant’s positive urinalysis, he was notified of ADSEP under the basis of Drug Abuse and the least favorable characterization of service that he may receive would be Under Other than Honorable Conditions.  Upon receiving this ADSEP notification, the Applicant exercised his rights to counsel and an ADSEP Board.  

Upon review of the provided documentation concerning the Applicant’s ADSEP Board, the NDRB noted a detailed list of respondent and government exhibits.  Within the respondent or Applicant’s exhibits was the hair follicle test and nine written character statements.  Those that provided testimony at the ADSEP Board include two Drug Laboratory Testing Experts, a program administrator from the urinalysis in question, four Marines that spoke on the Applicant’s behalf, and the Applicant himself provided an unsworn statement.  From the Drug Expert testimony, the NDRB found this testimony largely refuted the assertion that the Applicant did not have THC in his system at the time of the urinalysis despite having a follow-on hair follicle test that indicated there was no THC in his system.  One Drug Expert specifically said, “It is completely possible that since he had a positive urinalysis and negative hair follicle test, this could have been an accidental one time use, but there’s no way to tell if it’s one time or multiple times.  Although, I think this is in-line with a one-time use.”  This same drug expert went on to discuss instances or occurrence of false positive urine results and stated this was not the case.  The urinalysis program administrator’s testimony did highlight any anomalies or unusual findings from the conduct of the urinalysis.  The Applicant’s character witnesses which include three Staff Sergeants and one Captain all indicated they were shocked upon hearing that he tested positive for THC.  All of the witnesses also supported the Applicant’s professional character; one spoke on his off-duty behavior and knew him to be a dedicated Marine and family-man; and all of them believed he didn’t use drugs.  From the Applicant’s unsworn statement, he discussed his difficulty upbringing in which was around drugs, but at an early age he recognized the affect it has on those that were close to him and he never wanted to fall into this lifestyle.  The Applicant further discussed his service, his family, strong performance as a Drill Instructor, and his good reputation.  He added that he was taken off guard by the positive urinalysis notification, he has never done drugs in his life, and he would never do anything to jeopardize his career and hurt his family.  The ADSEP Board ultimately determined that the preponderance of the evidence presented supported the basis for separation and recommended separation with a General (Under Honorable Conditions) characterization of service.  Following this determination, the Applicant’s assigned legal counsel submitted a Letter of Deficiency for consideration.  The counsel argued that the Board was not impartial and the Board’s finding was legally deficient in that use of a controlled substance is not wrongful if it is done without the knowledge of the contraband nature of the substance.  The counsel further argued there was insufficient evidence to support knowing ingestion of a controlled substance and offered there was tremendous mitigating information provided at the Board.  In determining the assigned discharge characterization of service, the Separation Authority considered all of the presented evidence, the ADSEP Board’s determination and recommendations, the command’s ADSEP recommendation, and the LoD.  The Separation Authority ultimately directed separation with a General (Under Honorable Conditions).

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.  

Certain serious offenses warrant separation from the Naval Service to maintain proper order and discipline.  Violation of Article 112a is one such offense requiring mandatory processing for administrative separation regardless of grade or time in service.  In the Applicant’s case, he tested positive for THC on a urinalysis and his command opted for a lenient administrative separation.  While undergoing ADSEP processing, the Applicant exercised his right to an ADSEP Board and this Board found his drug use was wrongful and recommended separation with a favorable General characterization of service.  However, the Applicant asserted that he is not guilty of drug abuse as he has never done drugs and the methods in which the service tests for drug use specimens is flawed.  Following a thorough review of the record and the documentation provided for review, the NDRB found the Applicant provided insufficient evidence to refute the finding which supported his basis for his separation and the urinalysis in which he tested positive for THC.  Therefore, the NDRB determined his command acted properly and equitably in separating the Applicant from service and the awarded discharge was warranted.  Absent of this determination, the NDRB did find the Applicant’s clear and consistent objections to his drug use and his personal and professional matters to be compelling and merited some consideration.  The Applicant is highly encouraged to present his case at a future NDRB Personal Appearance Hearing.  Relief denied.  

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 .  Therefore, the awarded characterization of service shall  GENERAL (UNDER HONORABLE CONDITIONS), the narrative reason for separation shall  MISCONDUCT (DRUG ABUSE) with a corresponding separation code of GKK1, and the reentry code shall  RE-4.  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: 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.