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

Docket No. MD11-00554

ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20101223
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)	20040616 - 20040908  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20040909	Age at Enlistment:  
Period of Enlistment:   Years   Months with 11 Month Extension
Date of Discharge:  20100305	Highest Rank:  
Length of Service:    Year(s)    Month(s)  26  Day(s)
Education Level:  	AFQT:  48
MOS:  3381
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle  (2), , ACM, ,  (3), , , , MUC, LoA

Periods of CONF:  

NJP:  

- 20080428:	Article  (Unauthorized Absence - failure to be at appointed place of duty)
	Awarded:     Suspended:  

- 20090715:	Article  (Physically controlling a vehicle while drunk)
	Awarded:     Suspended:   

- 20090930:	Article  (Unauthorized Absence - failure to be at appointed place of duty 0700-1700, 20090906)
	Awarded:     Suspended:   

- 20100125:	Article  (Unauthorized Absence - absented himself from appointed place of duty, without authority, and remained so absent from 20091123 to 20100120 (59 days))
	Awarded:    Suspended:  

SCM:  		SPCM:  		CC:  

Retention Warning Counseling:  4

- 20080405:	For insubordination by treating with contempt and disrespect in language and deportment toward a senior noncommissioned officer in the execution of duties.  Your behavior will not be condoned or tolerated.  Your action in the presents of TCNs, junior Marines, and civilian DOD personnel brought discredit to the NCO ranks and this unit by your display of unprofessionalism.

- 20080423:	For unauthorized absence.  Specifically on 20080418, without authority, failed to go at the time prescribed to the Local Employed Screening Cell.

- 20090310:	For unauthorized absence.  Specifically, on 20090201 from 0900 to 1600, you failed to report for duty at the Mess Hall.

- 20090507:	For unauthorized absence.  On 20090413 at 0730, you failed to report for duty at the Mess Hall.

Administrative Corrections to the Applicant’s DD 214

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

	  “MARCORSEPMAN 6210.5”

The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.

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.	Decisional issues: The Applicant contends the characterization of his service at discharge was inequitable, because he served honorably in three combat deployments without any incident of misconduct whatsoever for 52 months and that his diagnosis of Post-Traumatic Stress Disorder (PTSD) was mitigation for the misconduct of record at the end of his enlistment period.

Decision

Date:  20110602	    	     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 NDRB - Equity of the issued characterization of service given three combat deployments to Afghanistan and Iraq and post-service, documented PTSD.

In reviewing the Applicant’s request, the NDRB completed a thorough review of the circumstances leading to  discharge and the discharge process to ensure the discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included four 6105 retention-counseling warnings and four nonjudicial punishments for violations of the Uniform Code of Military Justice (UCMJ), specifically: Article 86 (Absence without leave - 2 specifications of failure to be at his appointed place of duty and 1 specification of absenting himself from his appointed place of duty for 59 days) and Article 111 (Drunken operation of a motor vehicle).  In addition, the Applicant violated Article  (Wrongful use, possession, etc. of a controlled substance – marijuana, 101 ng/ml THC).  The Applicant’s service record reflects entry into the Marine Corps with a pre-service waiver for marijuana use and an adjudicated serious law offense.  Though missing from his official service records, as a requirement to his pre-service drug waiver, the Applicant was counseled and acknowledged  complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs as a condition of his enlistment.  Based on the Article 112a violation, processing for administrative separation was mandatory.  In accordance with the Marine Corps Separation and Retirement Manual (MARCORSEPMAN), the Applicant was notified for three applicable bases for separation: Misconduct (Pattern of Misconduct), Alcohol Rehabilitation Failure, and Misconduct (Drug Abuse).  When notified of administrative separation processing using the  notification procedure, the Applicant acknowledged that the least favorable characterization of his service warranted was Under Other Than Honorable Conditions and that the command was recommending this characterization of his service.  The Applicant elected to waive his right to consult with a qualified legal counsel, did not elect to submit written matters for the Separation Authority’s consideration, and chose not to request an administrative board hearing.

The Applicant’s service record reflects that he is a combat veteran, having deployed once to Afghanistan in support of Operation ENDURING FREEDOM and twice to Iraq in support of Operation IRAQI FREEDOM.  The Applicant’s record of service documents two combat deployments with a combat Infantry Battalion as a unit Interpreter to areas of Eastern Afghanistan and then Haditha, Iraq, with a third combat deployment with a Marine Wing Support Squadron in Iraq as a translator.

(Decisional Issue) ()  .  The Applicant contends the characterization of his service at discharge was inequitable, because he served honorably in three combat deployments  without any incident of misconduct whatsoever for 52 months and that his diagnosis of PTSD was mitigation for the misconduct of record at the end of his enlistment period.  

In accordance with the MARCORSEPMAN, the Applicant was notified of all applicable bases for separation in his notification package.  In reviewing the evidence of record available and the requirements for each basis of separation, the NDRB determined that the Applicant did meet the requirements as set forth for each basis for discharge.  The Applicant had established a Pattern of Misconduct; the Applicant refused alcohol treatment following an alcohol-related event; and the Applicant tested positive for the illegal use of marijuana.  Despite a service member’s prior record of service, certain serious offenses warrant separation from the Naval Service in order to maintain proper order and discipline.  The wrongful use of drugs is one of those serious offenses; processing for separation is mandatory and the service norm is either an administrative separation discharge with an Other Than Honorable characterization of service or a punitive Bad Conduct discharge if adjudged at a trial by special or general court-martial.  The Applicant did not rebut the positive urinalysis confirming that he used illegal drugs or that he had misconduct during the last 10 months of his service.  Furthermore, the evidence of record did not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The NDRB found there was credible evidence in the record that the Applicant used illegal drugs, was an alcohol rehabilitation failure due to refusal of treatment, and that he did establish a pattern of misconduct.  On 02 March 2010, the Applicant was notified of separation proceedings and elected his rights, in writing.  On 04 March 2010, the Separation Authority found all three bases for separation were substantiated by a preponderance of the evidence and that separation for each basis was warranted.  As such, he directed the Applicant be discharged for all three bases, but that for reporting purposes, Misconduct (Drug Abuse) was the primary reason for separation.  The NDRB determined that the Applicant was afforded all of his rights and that the mandatory processing for separation required for Marines who wrongfully use illegal drugs was proper; therefore, the board determined that no change in the narrative reason for separation is warranted on a propriety issue.

In determining discharge characterization of service, the Applicant’s conduct forms the primary basis for consideration.  The Applicant’s in-service conduct included four successive non-judicial punishments in his last 10 months of service for misconduct and a confirmation of illegal use of drugs (marijuana); this was a willful failure to meet the requirements of his contract honorably.  However, the Applicant contends his PTSD was a mitigating factor in his misconduct, which warrants consideration.  The Applicant’s medical record was very limited, documenting only that he was engaged in direct combat with enemy forces and did experience death and loss of comrades in arms.  However, the Applicant’s post-service VA Compensation and Pension Exam Report documents a long-running challenge with PTSD while in service and continuing since discharge.  The VA evaluation directly supports the Applicant’s contention that his PTSD was a mitigating factor associated with the in-service misconduct.  The NDRB determined that the unique circumstances of this individual case, coupled with the documented PTSD diagnosis and the Applicant’s meritorious service in combat while placing himself at risk to his life as an interpreter, warranted additional consideration in the determination of his overall characterization of service.  As such, by a vote of 5-0, the NDRB found that the awarded characterization of service was inequitable and that relief in the form of an upgrade in the characterization of service to General (Under Honorable Conditions) is warranted.  

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and service record entries, and the discharge process, the NDRB found   Therefore, the narrative reason for separation shall remain , however, the awarded characterization of service shall be changed to .  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.

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