ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20080205
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)	20020117 - 20020310  		Active:   

Period of Service Under Review:
Date of Enlistment: 20020311	   Period of Enlistment:   Years	Date of Discharge:  20060111
Length of Service:    Yrs    Mths  01  Dys	Education Level:  	Age at Enlistment:  
MOS:  3531      Highest Rank:       AFQT:  55
Proficiency/Conduct Marks (# of occasions):	  ()/ ()
Awards and Decorations (per DD 214):    (2)  W/COMBAT V ICM   (2)  
                                                                NDSM  Rifle 

Periods of UA/CONF:  

NJPs:	
20050317:	Article 112a (Drug abuse; test positive for THC).
	Awarded    .  Susp - .
20051031:	Article 92 (Failure to obey order or regulation)
	Awarded   .  Susp -  ($123.00)  (4 days).

SCMs:	

SPCMs:	

CC:	

6105 Counseling: 
20020923:	For manufacturing and discharging a homemade bomb while out on liberty off base.
20021008:	For your non-academic drop from the AO course of instruction.
20050228:	For my illegal drug related involvement, specifically, THC usage identified through urinalysis confirmed by NAVDRUGLAB message R311434Z JAN 05.
20050318:	For failure to obey base order P5000.2J, speeding 58 mph in a 45 mph zone and failure to obey orders or regulation.
20050406:	For illegal drug abuse of THC usage.
20050615:	For failure to obey base order P5000.2J, failure to maintain proof of insurance in vehicle and failure to obey orders or regulation.

Types of Documents Submitted/reviewed

Related to Military Service:	DD 214:  	Service and/or 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 Member of Congress:  
Other Documentation (Describe) 

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

Applicant’s Issues

1. Discharge should be medical vice misconduct (drug abuse) due to Post Traumatic Stress Disorder (PTSD) diagnosis..

Decision

Date:  20080807		Location:  Washington D.C.	 Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  misconduct (Drug Abuse).

Discussion

Issue 1:  ()  .  The Applicant contends his use of drugs was to relieve the severe symptoms of PTSD, which occurred after he returned from his second deployment to Iraq.  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.  The Applicant’s record of service was marred by violations of the Uniform Code of Military Justice, Article 92 and 112a.  Violations of Articles 92 and 112a are considered serious offenses, punishable by a bad conduct or dishonorable discharge and up to  imprisonment if adjudicated as part of the sentence upon conviction by a special or general court-martial.  However, the command did not pursue a punitive discharge but opted instead for an administrative discharge.  

The Applicant admitted to pre-service drug use on his enlistment contract and during his substance abuse evaluation interview after he tested positive for THC.  The Applicant admits, in addition, to using THC in January 2005 and he used an undisclosed amount in March 2005, but he was never discovered through a command drug test.  Medical records dated 12 July 2005 states he suffered from mild PTSD as evidenced by some trouble sleeping, nightmares, day time recollections, survivor guilt and anger problems.  The Applicant was prescribed ZOLOFT to address these problems, but ceased taking the drug due to unwanted side effects.  In a Post-Deployment self-assessment, Pvt Poling indicated he is depressed some of the time and is tired after sleeping, but that he had no thoughts of killing himself and did not want help for stress, emotional, alcohol or family problems.  While the Applicant may feel PTSD was the underlying cause of his misconduct, he did not produce any medical diagnosis by competent medical authority to support the claim his PTSD was so severe he was forced to self-medicate with THC rather than his prescribed medication.  Also, the evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.     
    
After a thorough review of the available evidence, to include the Applicant’s Summary of Service,  Record, 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 92 and 112a.

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