Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: janet.goode
Company: NCPB

Docket No. MD11-00831

ex-PFC, USMC

Current Discharge and Applicant’s Request

Application Received:  20110210
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: GENERAL (UNDER HONORABLE CONDITIONS)
	Narrative Reason change to: NONE REQUESTED

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	20030718 - 20040621  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  20040622	Age at Enlistment: 17 PARENTAL CONSENT
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  20080421	Highest Rank:  LANCE CORPORAL
Length of Service:  03  Year(s)  10  Month(s)  01  Day(s)
Education Level:  12	AFQT:  31
MOS:  3051 (Supply Warehouseman)
Proficiency/Conduct Marks (# of occasions):  4.1 (9) / 4.0 (9)	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	Rifle MM, SSDR, GWOTEM (Iraq), GWOTSM, NDSM

Period of UA: 20040840 - 20040831 (2 days); 20070427 - 20070508 (12 days)
Period of CONF:  NONE

NJP:  3

- 20070402:	Article 86(Unauthorized absence from appointed place of duty 0730, 20070305)
	Article 92 (Disobey a direct order, travel outside liberty limits)
	Article 134 (General article), 3 specifications 
	Specification 1: Commit an act of reckless endangerment by hunting while intoxicated
	Specification 2: Commit an act of self-injury with intent to avoid service
	Specification 3: Behave in a disorderly manner as a result of being intoxicated    
	Awarded: FOP RESTR EPD  Suspended:  FOP

- 20070615:	Article 86 (Unauthorized absence 20070427 - 20070508, 12 days) 
	Article 95 (Resist apprehension)
	Article 128 (Charged with assault)
	Article 134 (Drunk and disorderly) 
	Awarded: FOP RESTR EPD  Suspended:  FOP

- 20080117:	Article 112a (Wrongfully use, possession, etc of controlled substance – to wit; wrongfully possess some amount of marijuana – confirmation pursuant to NCIS investigation dated 31 July 2007) 
	Awarded: RIR FOP RESTR EPD  Suspended:  NONE

SCM:  NONE	

SPCM:  Article 112(a): charge was referred to SPCM.  Charges withdrawn per pre-trial agreement dated 03 Dec 2007; charges remitted to nonjudicial punishment in exchange for waiver of administrative discharge board and plea of guilty (Regimental Commander NJP dated 20080117).

CC:  NONE

Retention Warning Counseling:  2

- 20070315:	For lost of ID card due to lack of proper accountability 

- 20070402:	For being found guilty at Company NJP for violation of Articles 86 (Unauthorized absence), 92 (Failure to obey order or regulation), 134 (Hunting while intoxicated), 134 (Drunk and disorderly), and 134 (Inflicting bodily harm upon oneself in order to avoid service)

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.	Nondecisional issues: The Applicant seeks an upgrade to facilitate access to Department of Veterans Affairs (VA) benefits.

2.	Decisional issues: The Applicant contends that his substance abuse and behavior was a result of Post-Traumatic Stress Disorder (PTSD) and that his discharge was orchestrated to deny him completion of his active duty obligated service that was approaching; as such, Applicant seeks an upgrade in his characterization of service at discharge to General (Under Honorable Conditions). 

Decision

Date:  20110616	       DOCUMENTARY REVIEW       Location: Washington D.C.       Representation: NONE

By a vote of 5-0 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 Applicant identified one decisional issue for the NDRB’s consideration.  Additionally, the NDRB completed a thorough review of the circumstances that led to the discharge, and the discharge process, to ensure the Applicant’s discharge met the pertinent standards of equity and propriety.  

The Applicant enlisted on an open contract four-year enlistment agreement.  The Applicant had a pre-service waiver for illegal drug use (10 stated uses of marijuana) and two misdemeanor convictions for fighting in school.  The Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 17 July 2003 as a contingent to his enlistment.  In service, the Applicant’s service record contained two 6105 retention-counseling warnings for his misconduct and three nonjudicial punishments.  The Applicant’s service record reflects numerous violations of the Uniform Code of Military Justice (UCMJ), specifically, violation of Article 86 (Unauthorized Absence, 2 specifications), Article 92 (Disobedience of Lawful Orders), Article 95 (Resisting Apprehension), Article 112a (Wrongfully use, possession, etc of controlled substance), Article 128 (Assault), and Article 134 (General Article, 4 specifications).  The Applicant’s record documents that he is a combat veteran, deploying to a combat zone in support of Operation IRAQI FREEDOM.  The Applicant participated in combat operations in the Al-Anbar Province of Iraq from March 2005 to February 2006 while assigned to RCT 8.        

Based on the Article 112(a) violation, processing for administrative separation was mandatory.  Based on the seriousness of the offense charged, the command referred the charge and specification to trial by Special Court-Martial.  On 03 December 2007, the command accepted a Pre-Trial Agreement from the Applicant, wherein the Applicant would plead guilty to the charge as specified and would further agree to waive his right to an administrative board hearing in exchange for the convening authority’s withdrawal of the charge and specification against the Applicant from the pending Special Court-Martial.  The Pre-Trial Agreement further stipulated that the charge would be adjudicated at a Regimental Commander’s Nonjudicial Punishment. 

On 10 March 2008, the Applicant was notified of the command’s intention to recommend that he be administratively separated from the Marine Corps pursuant to paragraph 6210.5 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) - Misconduct (Drug Abuse).  The Applicant was notified that the least favorable characterization of service possible was Under Other Than Honorable Conditions and further, it was the command’s recommendation that he receive that characterization of his service.  On 14 March 2008, the Command forwarded their recommendation for discharge to the Separation Authority (Commanding General, 2d Marine Division).  The Separation Authority approved the discharge on 09 April 2008, having determined that the evidence of record met the requirements for the narrative reason for separation (Misconduct) and that the Applicant’s misconduct warranted the characterization of service as recommended.  The Separation Authority further directed that the Applicant receive an RE-4B reentry code on his DD Form 214 (not recommended for reenlistment due to drug abuse).  The Applicant was discharged as directed by the Separation Authority on 21 April 2008.     

Non-decisional Issues - The Applicant seeks an upgrade in the characterization of his service at discharge in order to gain eligibility for VA benefits.  There is no requirement, or law, that grants re-characterization solely on the issue of obtaining veterans benefits.  As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.  Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or reenlistment opportunities; regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge.
  
Issue 1:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends that his substance abuse and behavior was a result of PTSD and that his discharge was orchestrated to deny him completion of his active duty obligated service that was approaching completion.  The NDRB completed a thorough review of the Applicant’s issues and the discharge process and determined that the discharge met the pertinent standard of propriety in accordance with paragraph 6210.5 of the MARCORSEPMAN.  The Applicant pled guilty to the charge of wrongful possession of illegal drugs (marijuana) as reported in a Naval Criminal Investigative Service investigation that began in July 2007 in a Regimental Commander’s nonjudicial punishment; therefore, the preponderance of evidence required for discharge pursuant to Misconduct – Drug abuse was established.  In accordance with Marine Corps Policy on illegal drug use, violation of Article 112 (a) of the UCMJ warrants mandatory processing for separation.  The Applicant was afforded all legal rights during the separation process, was represented by legal counsel, and entered into a written pre-trial agreement with the Commanding Officer as the Special Court-Martial Convening Authority.  As such, no relief is warranted based on matters of propriety.  

The Applicant contends his problems were attributed to PTSD.  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 found no medical diagnosis in the record to support the Applicant’s claim of PTSD nor did the Applicant produce any post-service medical diagnosis by competent medical authority to support his claim.  In December 2006, after completing intensive outpatient treatment for alcohol dependency, the Applicant self-referred to the Regimental Aid Station for a psychiatry consult regarding a concern for PTSD.  The Division Psychologist evaluated and treated the Applicant and subsequently determined him to be psychologically fit for full duty.  The in-service medical records reflect no diagnosis of PTSD, and the Applicant did not identify PTSD as a concern on his post-deployment health assessment nor his medical separation documentation.  Even a letter, submitted by the Applicant, from a Licensed Clinical Social Worker at an outpatient VA clinic in Appleton, WI, makes no mention of PTSD.  

While the Applicant may feel PTSD was the underlying cause of his misconduct, the record clearly reflects alcohol abuse, a pattern of willful misconduct, and wrongful possession of illegal drugs in direct violation of the Marine Corps Policy on drug use.  The Applicant’s service record reflects multiple alcohol-related incidents and counseling for those issues.  The Applicant was afforded treatment and counseling regarding alcohol use and abuse via an Intensive Outpatient Treatment Program.  Additionally, the Applicant self-admitted to the use of Percocet (a controlled narcotic substance, without a prescription) for personal relaxation purposes.  The Applicant’s command determined that these factors demonstrated that he was unfit for further service.
  
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, which constitutes a significant departure from the conduct expected of members of the Naval Service.  After a thorough review of the facts and circumstances unique to this case, the NDRB determined that the Applicant’s record of service did reflect conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service.  As such, the NDRB discerned no inequity in the discharge characterization of the Applicant’s service.  Furthermore, the narrative reason for separation was proper and accurately reflected the Applicant’s reason for separation; therefore, it shall remain Misconduct (Drug Abuse).  Based on the Applicant’s documentation and his official service and medical records, coupled with the facts and circumstances unique to this case, the NDRB determined that relief would be inappropriate and is not warranted.  Accordingly, relief denied.    

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service and medical record entries, and the discharge process, the NDRB determined that 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; specifically, the paragraphs titled Additional Reviews 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

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