Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: chananuch.reed
Company: NCPB

Docket No. MD10-01322

ex-Pvt, USMC

Current Discharge and Applicant’s Request

Application Received:  20100420
Characterization of Service Received: (per DD 214) UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge: (per DD 214) MISCONDUCT
Authority for Discharge: (per DD 214) MARCORSEPMAN 6210.5 [DRUGS]

Applicant’s Request:	Characterization change to: HONORABLE
	Narrative Reason change to: MEDICAL SEPARATION

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	20010712 - 20011126  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  20011127	Age at Enlistment:  21
Period of Enlistment:  5 Years  0 Months
Date of Discharge:  20050826	Highest Rank:  CORPORAL
Length of Service:  03  Year(s)  09  Month(s)  00  Day(s)
Education Level:  12	AFQT:  73
MOS:  6217/1391
Proficiency/Conduct Marks (# of occasions):  3.6 (13) / 3.5 (13)	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	Rifle MM GWOTSM GWOTEM SSDR (w/1 star) KDSM NDSM NUC LoA CoC (Unit Award)

Periods of UA:  NONE  NJP:  NONE

SCM:  1

- 20050603:	Article 91, (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer, 2 specifications, NFIR)
	Article 92 (Failure to obey order or regulation)
	Article 117 (Provoking speeches or gestures)
	Article 112a (Wrongful use, possession, etc., control substances – THC 61 ng/ml)
	Sentence: RIR E-1 CONF 30 days (Pre-trial confinement 20050226 – 20050601, 96 days)

SPCM:  NONE  CC:  NONE

Retention Warning Counseling:  1
- 20050616:	For illegal drug use

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.  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.

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

Applicant’s Issues

1.	The Applicant seeks an upgrade for educational opportunities.
2.	The Applicant contends his discharge is improper, because his post-traumatic stress disorder (PTSD) was a mitigating factor in his misconduct.
Decision

Date:  20110512	DOCUMENTARY REVIEW	Location: Washington D.C.	 Representation: NONE

By a vote of 3-2 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS.
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT.

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 his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included one 6105 counseling warnings, and one summary court-martial (SCM) for violations of the UCMJ: Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer, 2 specifications, NFIR), Article 92 (Failure to obey order or regulation), Article 117 (Provoking speeches or gestures), and Article 112a (Wrongful use, possession, etc., control substances – THC 61 ng/ml).  The Applicant also had a pre-service drug waiver for using marijuana ten times prior to entering the Marine Corps, and acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 10 July 2001.  Based on the Article 112a violation, processing for administrative separation is mandatory.  When notified of administrative separation processing using the administrative board procedure, the Applicant exercised his rights to consult with a qualified counsel, submit a written statement but waived his right to request an administrative board.

The Applicant’s record of service and from his written testimony indicates he is a combat veteran, having served approximately three weeks of one deployment in Iraq in support of Operation Iraqi Freedom between October to November 2004.  The Applicant served as an Aircraft Mechanic.

The Applicant provided copies of his clinical psychology evaluation from MHU BMC MCRD San Diego, Chronological Record of Medical Care section of Medical Records, and SACO Screening Form.  In addition, the Applicant also provided three letters of reference. 

Issue 1:  (Nondecisional) The Applicant seeks an upgrade for 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.

Issue 2:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends his discharge is improper, because his PTSD was a mitigating factor in his misconduct.  The NDRB conducted 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 was recommended for administrative separation based on a notification of Misconduct (Drug Abuse) regarding his violation of Article 112a, pursuant to his violation of the Marine Corps Policy on drugs as evidenced by the Summary Court-Martial for the illegal use of a controlled substance, marijuana.

Despite a service member’s prior record of service, certain serious offenses, though isolated, warrant separation from the Naval service in order to maintain proper order and discipline.  Violation of Article 112a is one such offense, requiring mandatory processing for administrative separation on the first offense, regardless of grade or time in service.  This action usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge with the possibility of confinement if adjudicated and awarded as part of a sentence by a Special or General Court-Martial.  The command did not opt to pursue a punitive discharge, but instead chose the more lenient administrative discharge process.  

On 25 June 2005, the Separation Authority approved the command’s recommendation for separation and directed the Applicant be discharged under other than honorable conditions for Misconduct due to drug abuse pursuant to paragraph 6210.5 of the Marine Corps Separation and Retirement Manual.  The Applicant was discharged subsequently from service on 26 August 2005.  The NDRB determined that the separation was proper and the narrative reason for separation was accurate.  A change would be inappropriate.  Accordingly, on the propriety issue, relief denied.

The Applicant contends that PTSD was a mitigating factor in his misconduct.  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 NDRB did not find enough medical documentation in the record to support the Applicant’s claim, nor did the Applicant produce concrete medical diagnosis by competent medical authority to fully support his claim.  On 24 November 2004 the Applicant was initially diagnosed with PTSD, bereavement, and alcohol abuse after being medically evacuated from Iraq after an alcohol-related suicide attempt 13 November 2004.  The Applicant’s mother had died a few weeks earlier, and the Applicant had less than two weeks leave at home before he returned to Iraq.  The Applicant’s records show subsequent medical follow-ups and treatment diagnosed bereavement and alcohol abuse more so than PTSD.  Additionally, the Applicant made mention of frequent binge drinking prior to Iraq, and he enlisted under a drug waiver for significant marijuana usage.  Considering the Applicant had less than a month of actual time on the ground in Iraq as an aircraft mechanic, it is unclear that the Applicant was suffering from combat-related PTSD.

While he may feel that PTSD was the underlying cause of his misconduct, marijuana or alcohol use is never a rationale or acceptable excuse for inappropriate conduct or poor judgment.  Although the Applicant only had the one recorded adverse conduct, and it occurred after his return from Iraq, there is not a clear indication it is related to PTSD.  The NDRB did review the Applicant’s proficiency and conduct (pro/con) marks and did not notice any major changes except after his time in the Brig and after his SCM.  Without further documentary evidence, the NDRB cannot form a basis of relief.

Characterization of service at discharge is the recognition of a Marine’s performance and conduct during a period of enlistment and is not necessarily dependent upon the narrative reason for separation.  When the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under Honorable conditions.  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.  The NDRB by majority vote determined the Applicant’s conduct, which forms the primary basis for determining the character of service, reflected acts that were a significant departure from the conduct expected of a service member and the awarded characterization, as issued, was appropriate and was equitable.  Accordingly, relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and service record entries and discharge process, the Board found the discharge was proper and equitable.  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 his 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), 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

Key:	NFIR - Not found in record 	UA - Unauthorized absence	NJP - Nonjudicial punishment	SCM - Summary court-martial
	SPCM - Special court-martial	FOP - Forfeiture of pay	RIR - Reduction in rank	EPD - Extra duties
	CONF - Confinement	CC - Civilian conviction	CCU - Correctional Custody Unit	BW - Confinement on bread and water

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Nonjudicial punishment	SCM – Summary court-martial	
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties 
	CONF – Confinement		B&W – Confinement on bread and water