ex- LCpl, 

Current Discharge and Applicant’s Request

Application Received: 20230206
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: REQUESTED BUT NOT SPECIFIED
Reentry Code change to: REQUESTED, BUT NOT SPECIFIED

Summary of Service

Prior Creditable Service:
Inactive:	 	             	Active:	 

Period of Service Under Review:
Date of Enlistment:  20160216	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20200708	Highest Rank/Rate:  Cpl
Length of Service:  04  Year(s)  04  Month(s)  23  Day(s)
Education Level:  12	AFQT:  88
Deployment/Operation: 

Evaluation Marks (# of occasions):  Performance/Proficiency: 4.3 (NFIR)   Behavior/Conduct: 4.3 (NFIR)  
Fitness Reports: 

Awards and Decorations (per DD 214):	Rifle (x2) Pistol (x2) NDSM GWOTSM SSDR LoA 

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

SCM:    SPCM:    CIVIL ARREST:   CC:   

NJP:  2

- 20190128:	Article 92 (Failure to obey order, regulation) 
	Article 107 (False official statements)
	Article 134 (General article)
	Awarded: FOP    Suspended:  NONE

- 20200506:	Article 112a (Wrongful use, possession, manufacture or introduction of controlled substance) 
	Awarded: RIR RESTR FOP   Suspended:  

Retention Warning Counseling:  3

- 20171106:	For reckless driving.

- 20190128:	For violation of Articles 92, 107 and 134. 

- 20200506:	For violation of Article 112a.  

NDRB Documentary Review Conducted (date):	20220729
NDRB Documentary Review Docket Number:	MD22-531
NDRB Documentary Review Findings:		Proper as issued and that no change is warranted.

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:  Applicant Spouse	
	Witness E-2:			Witness C-2:

Pertinent Regulation/Law

A.  The Marine Corps Separation and Retirement Manual, (MCO 1900.16 CH 2), effective 15 February 2019 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 that his post-service achievements are deserving of consideration for an upgrade. 
2.	The Applicant contends that his discharge is inequitable as it is not reflective of his complete record of service.
3.	The Applicant states that he is deserving of an upgrade due to medical issues mitigating the misconduct that contributed to his administrative separation. 
4.	The Applicant states that his discharge is inequitable as he was not afforded due process in the administration of his legal and administrative separation processing and this reflects mistreatment by his command.     

Discussion

Date:  20230925		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:

  for  of the Uniform Code of Military Justice (UCMJ): 
Article 92 (Failure to obey order, regulation) 
Article 107 (False official statements)
Article 112a (Wrongful use, possession, manufacture or introduction of controlled substance)
Article 134 (General article)

:  The Applicant contends that his post-service achievements are deserving of consideration for an upgrade.    

The Applicant contends his post-service conduct warrants consideration for an upgrade to Honorable.  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 educational achievements, financial stability and continuous employment, and several 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.  While the Board accounted for all materials, references, certificates submitted and the testimony of his character reference present at the hearing, it was not able to grant relief for this issue alone. The Board assessed all considerations provided by the Applicant in a capacity that afforded members more insight of the individual and the circumstances associated with the situation and issues presented.  

Issue 2:  The Applicant contends that his discharge is inequitable as it is not reflective of his complete record of service. 

The Applicant states his overall performance and contributions to the Marine Corps are not appropriately recognized by his assigned discharge characterization. In support of this claim, the Applicant highlights his selection for Marine Corps Security Forces, qualifications attained and highlighted specific achievements and contributions he made to his unit that included volunteer initiatives. 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.  Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition.  The Applicant was separated for violating the service drug policy after a urine sample tested positive for cocaine and fentynal. This failure mandates administrative processing. In addition to this misconduct the Applicant’s record also contained an additional NJP for violations of Articles 92, 107 and 134; and three retention warning counselings that included counseling for reckless operation of a vehicle in addition to those received for his NJPs. Although the context of all the misconduct was provided in the Applicant’s testimony, these documented acts of misconduct occurred over the course of three years and consisted of behavior that was counter to upholding good order and discipline. The Applicant was separated for violating the service drug policy, but his misconduct was not isolated to this single incident. Regulations would also substantiate a record that constitutes a pattern of misconduct given the misconduct constituted criteria for processing per the MARCORSEP Manual for this reason. Thus the Board was challenged to accept the Applicant responded to discipline and exercised efforts to improve and abide by regulations. While the Board acknowledged the Applicant’s accomplishments, the record does substantiate disciplinary issues that are not isolated and occur throughut the Applicant’s enlistment despite engagement by his leadership. 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 when the complete record is accounted for.   

Issue 3:  The Applicant states that he is deserving of an upgrade due to medical issues mitigating the misconduct that contributed to his administrative separation. 

The Applicant raises consideration for the medical issues that he was experiencing and that these conditions mitigate the misconduct that contributed to his administrative separation. Documented within the record is a deliberate statement that accounts for an evaluation by a qualified Medical Officer at the time of the Applicant’s discharge. Accounting specifically for this evaluation, the Applicant’s Commanding Officer states that he carefully reviewed the Applicant’s Separation History and Physical Examination and determined that no medical condition had an effect on the performance or conduct resulting in the basis for separation. While the Applicant contests serious pain and suffering from a debilitating shoulder injury, conditions  surrounding his drug use did not reflect circumstances of addiction caused by irresponsible prescriptions, but rather a significant lapse in his judgment. The Applicant had access to medical care and although he states disappointment in his recovery and pain management efforts on the part of medical providers, it is his responsibility to advocate for himself. A review of the medical record did not indicate a lack of care or engagement nor access to legitimate means to seek relief. The NDRB did not find a justified reason to apply mitigation considerations for medical reasons or grounds for liberal consideration. Accepting medication, that was thought to be prescription level by the Applicant, from an unauthorized source, and someone he only described as a neighborly acquaintance, was simply irresponsible and reckless. 

Issue 4:  The Applicant states that his discharge is inequitable as he was not afforded due process in the administration of his legal and administrative separation processing and this reflects mistreatment by his command.     

When reviewing discharges, the Board considers the standards for determining characterization of service where an Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for Naval personnel.  Further, an honorable discharge characterization does not require flawless military service; many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct.  A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record.  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. 

In this case, the Board found the Applicant engaged in conduct that constituted a significant departure from the conduct expected of members of the Naval Service.  The Applicant contends that he was mistreated by his command and that he did not receive due process during his administrative separation processing. Raising several issues that associate with being denied access to legal counsel, coercion by senior leadership to influence his decisions and an unjust confinement, the Applicant contends these issues surmount to impropriety. In review of the Applicant’s record and accounting for the Applicant’s testimony 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 any evidence, to support the contention the command treated him unfairly. 

Specific to the Applicant’s claims that he was denied access to legal counsel, the record contains a signed statement acknowledging an election that he did not seek it and that he knows it was in his best interest to seek counsel. Within the same statement, the Applicant elects to exercise his right to an Administrative Separation Board (ASB). An ASB assigns counsel to respondents so the Board was challenged to understand how the Applicant could contend that he was completely denied access to legal counsel. While his signed acknowledgement to not seek counsel, but exercise his right to an ASB are not cohesive elections, there is no evidence in the record or within the testimony that substantiates a violation of his rights to counsel. 

Additional mistreatment included statements made of an unjust confinement and that of the Applicant being coerced into dropping his ASB by the threat of being subject to another legal proceeding. While the record contains a written statement by the Applicant stating he no longer desired to exercise his right to an ASB, there is no record of any other charges or confinement. During testimony the Applicant indicated that the confinement occurred for unknown legal reasons and was used as a tactic to unduly influence his decisions and administrative disposition. Despite not having access to the specific circumstances surrounding the Applicant’s confinement, the NDRB did not identify any reason or justification that his command acted improperly. It is incumbent on the Applicant to overcome the presumption of regularity or provide a preponderance of evidence that overcomes what was known or applied during the period of service under review. Multiple scenarios could be applied that justify the command’s actions to confine the Applicant that do not require any record of action that would be included in the Applicant’s service record. The fact that the Applicant was released after his initial confinement hearing does not bear any proof of innocence or immunity from the subjectivity of charges. In this case, the Applicant was held on restriction after being released from confinement which indicates that the command had charged him with violations of the UCMJ that he had not been processed for. These new charges could of come from an investigation or awareness of unaccounted for circumstances related or unrelated to his drug use. It is also feasible that these charges were dropped in return for the Applicant’s agreement to waive his right to an ASB. Other scenarios that reflect regularity are also possible and the Applicant failed to overcome this as he only presented statements and no evidence of mistreatment that could be substantiated.   

Challenging for the NDRB to accept was the argument of mistreatment when the record documents the Applicant’s engagement with his chain of command through his administrative processing. In his Regimental Commander’s endorsement it is stated that he personally interviewed the Applicant. This interview afforded the Applicant an opportunity to raise any mistreatment or denial of due process and yet he did not exercise his opportunity to do so. The intent of these interviews is for that purpose and reflects engaged leadership that has the personal interest of their Marines at the forefront of the decisions being made. 

The Applicant’s service included three retention warnings and two nonjudicial punishments for violations of UCMJ Articles  92, 107,112a and 134.  Violations of UCMJ Article 92, 107, 112a, and 134 are considered serious offenses for which a punitive discharge is authorized. In this case the Applicant’s leadership did not pursue a punitive discharge but opted instead for the more lenient administrative discharge.

The Applicant contends he was wronged by his commanding officer and that resulted in his other than honorable discharge.  The record contained insufficient evidence of any wrongdoing by the Applicant’s commanding officer or anyone else in the discharge process.  The NDRB presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary.  The NDRB discerned no impropriety or inequity and determined the Applicant’s discharge was proper and equitable. Relief denied. 

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.

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  UNDER OTHER THAN HONORABLE CONDITIONS, the narrative reason for separation shall  MISCONDUCT with a corresponding separation code of HKK, and the reentry code shall  RE-4B.  The Applicant is not eligible for further reviews by the NDRB.  The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149.  

ADDENDUM:  Information for the Applicant

Additional NDRB Reviews: After receiving a NDRB Document Review, an Applicant remains eligible for a Personal Appearance/Telephonic Hearing if the application is received by the NDRB within 15 years of the Applicant’s date of discharge.  The Applicant can provide documentation to support any claim(s) related to their discharge as well as evidence of post-service accomplishments.  Representation at a personal appearance hearing by an Attorney (or Advocate) 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.  However, if you have been discharged for more than 15 years, already had a personal appearance hearing, or otherwise exhausted your opportunity to be heard by 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.

Appeal Procedures on NDRB Decision: If you contest the NDRB’s decision in your case AND you already contested the NDRB’s previous decision at a Personal Appearance Hearing or otherwise exhausted your opportunity before the NDRB (or it has been more than 15 years since your discharge), 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.  The BCNR is the highest level of administrative review within the Department of the Navy/Marine Corps to correct errors or injustices to member’s records.

Complaint Procedures on Format: If you believe the decision in your case is ambiguous, 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 (JSRA), OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  You should read Enclosure (5) of the DoD Instruction 1332.28 before submitting such a complaint.  This complaint procedure does not permit a challenge on the merits of the NDRB’s decision; the JSRA is designed solely to ensure that the NDRB decisional documents meet applicable requirements for clarity and responsiveness.  Therefore, if you are contesting the merits of the NDRB’s decision and already had a NDRB personal appearance hearing or otherwise exhausted your opportunities before the NDRB, the Applicant may appeal/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 [VA] Benefits: The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  The NDRB has no authority to upgrade a discharge for the sole purpose of facilitating access to VA benefits.  Regulations limit the NDRB’s review solely to a determination of the propriety, equity, and clemency of a discharge.  Consequently, the Applicant should petition the VA, which determines eligibility for post-service benefits.  The VA conducts its own determination of eligibility based on service records and input from an Applicant upon their request.  (See www.va.gov/discharge-upgrade-instructions).  Therefore, if the NDRB grants a change to a discharge, the NDRB will notify the Commander, Navy Personnel Command or Commandant of the Marine Corps that the DD 214 be corrected as appropriate; however, it is the Applicant’s responsibility to ensure these changes are incorporated into the record by the respective Service Headquarters.  Further, it is the Applicant’s sole responsibility to submit these changes to the VA for a determination of eligibility for VA Benefits.  Finally, the Applicant should refer to the Veterans Administration website (https://www.va.gov/) for information regarding VA benefits and healthcare.  Additionally, Veterans in acute suicidal crisis can go to any VA or non-VA health care facility for emergency health care at no cost – including inpatient or crisis residential care for up to 30 days and outpatient care for up to 90 days.  Veterans do not need to be enrolled in the VA system to use this benefit.  In order to find the nearest VA office to receive assistance with determining VA eligibility/access, the Applicant should refer to https://www.va.gov/find-locations. 

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 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.  If the Applicant’s claim of PTSD/TBI was based in whole or in part on sexual trauma, intimate partner violence, or spousal abuse, the NDRB obtained a review by a psychiatrist, psychologist, or social worker with training on mental health issues associated with PTSD/TBI or other trauma.  

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 that 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.  Additionally, Veterans in acute suicidal crisis can go to any VA or non-VA health care facility for emergency health care at no cost; you can use this benefit regardless of your discharge status, or enrollment in VA health care.  In order to find the nearest VA office to receive assistance, see Find your nearest VA medical center.