ex-, USMC

Current Discharge and Applicant’s Request
Application Received:  20100218
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)	20031124 - 20040222  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20040223	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20081117	Highest Rank:  
Length of Service:    Year(s)    Month(s)  25  Day(s)
Education Level:  	AFQT:  54
MOS:  1833
Proficiency/Conduct Marks (# of occasions):  / 	Fitness Reports:  
Awards and Decorations (per DD 214):	Rifle  (2)      (2)    
Periods of CONF:  

NJP:  
- 20070211:	Article  (Through negligence, discharge an M4 rifle, causing self-injury in the left leg). 
	Awarded:      Suspended:   

SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  
- 20080707:	For your poor decision making ability and your failure to set a good example as a Marine and a Non Commissioned Officer.    
- 20080722:	For your poor decision making ability and your failure to set a good example as a Marine.    

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.  Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications.

C.  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 his misconduct was an isolated incident that occurred while the member was heavily medicated on prescription narcotics, and he was not aware of his actions.  As such, the Applicant contends that he should not have been held accountable for his actions due to the mitigation and that the discharge was therefore not equitable.  The Applicant avers that this was an isolated incident, out of character, and was not willfully or knowingly committed.  

Decision

Date:  20101119		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 Applicant identified one decisional issue to the Board.  The Board completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety.  The Applicant entered military service with a waiver for pre-service drug use - marijuana and cocaine - and acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 23 November 2003.

The Applicant’s record of service included two 6105 retention-counseling warnings and one nonjudicial punishment for violation of Article 134 of the Uniform Code of Military Justice (UCMJ); specifically, discharging a firearm through negligence.  The Applicant’s record reflects no summary courts-martial or special courts-martial convictions and no civilian convictions.  Additionally, the Applicant’s service record indicates he was medically evacuated from the Iraqi theater of operations while forward deployed due to a negligently inflicted gunshot wound to the lower left leg while conducting combat operations during Operation IRAQI FREEDOM II.  The Applicant underwent seven surgical procedures to repair the damage caused to his left leg.  The Applicant was authorized physical disability retirement due to his injuries, effective 30 September 2008.  Due to the pending administrative separation for misconduct, the transfer to the temporary disability retirement list was cancelled.    

At the time of administrative separation, the Applicant’s command had preferred charges against him to trial by Special Court-Martial for violations of the UCMJ: Article 112a (Wrongful use, possession, etc of controlled substances – to wit: THC, 202 ng/ml)) and Article 86 (Absence without leave, specifically – 3 specifications of failure to be at appointed time or place of duty).  Based on the Article 112a violation, processing for administrative separation, at a minimum, was mandatory.  In a signed statement, the Applicant requested an administrative discharge in lieu of a trial by court-martial.  He consulted with counsel and was fully advised of the implications of his request.  The Applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits based upon his current enlistment, and that he might expect to encounter substantial prejudice in civilian life.  The Applicant stated he understood the elements of the offenses with which he was charged.  He admitted he was guilty of violating Article 112a and Article 86 of the UCMJ.  The command accepted the Applicant’s request and the General Court Martial Convening Authority approved the requested and directed the Applicant’s separation with a characterization of service of Under Other Than Honorable Conditions. 

:  (Decisional) () PARTIAL .  The Applicant contends that his misconduct was an isolated incident that occurred while the member was heavily medicated on prescription narcotics, and he was not aware of his actions.  As such, the Applicant contends that he should not have been held accountable for his actions due to the mitigation and that the discharge was therefore not equitable.  The Applicant avers that this was an isolated incident, out of character, and was not willfully or knowingly committed.

Certain serious offenses warrant separation from the 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.  This usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial.  In the Applicant’s case, the command opted to prosecute the violation at trial by special court-martial in order to ensure good order and discipline within the command.  

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.  The NDRB completed a thorough review of the Applicant’s discharge process and determined his discharge met the pertinent standard of propriety.  However, after a careful review of the Applicant’s combat deployment history and in-service mental health diagnoses of PTSD, coupled with the extensive and heavy dosage of narcotics as part of his prescribed post-surgical treatment, the NDRB determined the Applicant’s mental health and medication regimen were mitigating and contributory factors in his misconduct.  Based on the Applicant's documentation, his official service and medical records, coupled with the facts and circumstances unique to this case, the NDRB determined partial relief was warranted.  By unanimous vote, the NDRB agreed that the narrative reason for separation was proper as issued; however, the characterization of service at discharge was inequitable.  As such, the Board determined an upgrade to General (Under Honorable Conditions) was warranted.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service records, medical record entries, findings, and diagnosis’s, and discharge process, the Board found the discharge was proper but not equitable.  Therefore, the awarded characterization of service shall  GENERAL (UNDER HONORABLE CONDITIONS), however, the narrative reason for separation shall remain .

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, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct.

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), 2 Navy Annex, Washington, DC 20370-5100 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