Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: jennifer.miles
Company: NCPB

Docket No. MD11-00943

ex-Pvt, USMC

Current Discharge and Applicant’s Request

Application Received:  20110302
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)	20030908 - 20040825  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  20040826	Age at Enlistment:  18
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  20060721	Highest Rank:  LANCE CORPORAL
Length of Service:  01  Year(s)  11  Month(s)  20  Day(s)
Education Level:  12	AFQT:  49
MOS:  0311
Proficiency/Conduct Marks (# of occasions):  4.1 (5) / 4.1 (5)	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	Rifle MM, PH, CAR, ICM, SSDR, GWOTSM, NDSM

Periods of UA:  NONE

NJP:  NONE	SPCM:  NONE	   CC:  NONE	 Retention Warning Counseling:  NONE

SCM:  1

- 20060414:	Article 112a (Wrongful use, possession, etc of a controlled substance; wrongful use of a controlled substance - cocaine)
	Sentence: RIR E-1, FOP, CONF 30 days (20060414-20060507; 24 days)

NDRB Documentary Review Conducted (date):	20070716
NDRB Documentary Review Docket Number:	MD07-00996
NDRB Documentary Review Findings:		Proper as issued and that no change is warranted.

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:	☐

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

Applicant’s Issues

1.	The Applicant seeks an upgrade in the characterization of his service at discharge, asserting that his discharge does not accurately reflect the total character of his service.
2.	The Applicant contends his discharge characterization of service was inequitable; that his youth and immaturity, coupled with Post-Traumatic Stress Disorder (PTSD) and Traumatic Brain Injury (TBI) related to his combat service caused his issues.
3.	The Applicant contends that his post-service efforts and conduct are worthy of consideration.

Decision

Date:  20120430	PERSONAL APPEARANCE HEARING	Location: Washington D.C.	 Representation: American Legion

By a vote of 5-0 the Characterization shall change to GENERAL (UNDER HONORABLE CONDITIONS).
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT.

Discussion

The NDRB reviewed the Applicant’s personal statement on his submitted DD Form 293 received on 02 Mar 2011; it did not indicate any contentions related to either PTSD or TBI as causal or mitigating factors.  However, on the day of the personal hearing, the Applicant submitted a supplemental list of issues related to the equity of his discharge action, which included a contention that both PTSD and TBI were causal factors to his misconduct, and as such, warranted consideration for mitigation.  In this specific case, due to the late notice (day of the hearing), the NDRB was unable to comply with U.S. Code, Title 10, Section 1553 (d) (1); the board, as convened, did not include a member who is a physician, clinical psychologist, or psychiatrist.  Additionally, in accordance with section 1553 (d) (2), the service secretary had not expedited a final decision nor was he able to accord the case priority in order to achieve an expedited resolution.  The Applicant acknowledged the late notice and opted to proceed with the board as empanelled to hear his case.  The Applicant’s service record documents a deployment as an Infantryman in the Al-Anbar Province of Iraq while conducting combat operations in support of Operation IRAQI FREEDOM (OIF).  The military service record further documents that he was awarded the Purple Heart for wounds received in action and the Combat Action Ribbon for his actions while engaged in combat operations against enemy forces.         

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 NDRB 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 three decisional issues for the NDRB’s consideration related to the equity of the characterization of his service; additionally, the NDRB 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 both equity and propriety.

The Applicant’s enlistment record reflects entry into military service at age 18 without any waivers to enlistment and induction standards; as a function of his enlistment, he acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs - in writing - on 25 August 2003.  The Applicant’s record of service further documents an administrative summary court-martial for violation of the UCMJ: Article 112a (Wrongful use, possession, etc., of a controlled substance; 1 specification - wrongful use of cocaine).  Based on the violation of Article 112(a), processing for administrative separation was mandatory by acknowledged service policy.  The NDRB reviewed the Applicant’s discharge package to ensure the Applicant was afforded all rights, as required by the Marine Corps Separation and Retirement Manual (MARCORSEPMAN).  The Applicant was notified - in writing - of the Command’s intent to process him for administrative separation due to Misconduct (Drug Abuse) in accordance with paragraph 6210.5 of the MARCORSEPMAN with a recommendation for characterization of service as Under Other Than Honorable Conditions.  The Applicant chose to exercise his right to consult with a qualified legal defense counsel, but opted to waive his rights to request a hearing before an administrative hearing board or to include a written statement for consideration by the Separation Authority.  After review by the Staff Judge Advocate, the Separation Authority determined that the evidence of record was sufficient in law and fact to support the proposed reason for discharged.  As such, the Separation Authority directed the Applicant’s discharge Under Other Than Honorable Conditions.
Issue 1:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant seeks an upgrade in the characterization of his service at discharge, asserting that his discharge does not accurately reflect the total character of his service.  Despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Marine Corps to maintain proper order and discipline; violation of Article 112(a) of the UCMJ is such an offense.  Wrongful use of controlled substances can result in an unfavorable characterization of service at 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.  Even though the Applicant had committed a serious violation of the UCMJ, his command did not pursue a punitive discharge; instead, they opted to pursue the more lenient administrative discharge.  The NDRB found the characterization of the Applicant’s service at discharge was equitable and was no more severe than the characterization of service given others in similar circumstances.  As such, relief pursuant to this issue is denied.

Issue 2:  (Decisional) (Equity)  RELIEF WARRANTED.  The Applicant contends his youth and immaturity, coupled with PTSD and TBI related to his combat service caused his issues.  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 recognizes that many service members are young when they enlist for service, but most still manage to serve honorably.  The Board does understand some members are not as mature as others, however, it does not view a member’s claim of youth and immaturity to be a mitigating factor or a sufficient reason for misconduct, especially deliberate misconduct in direct violation of well-publicized and understood policy.

On 14 December 2005, during combat operations in Iraq, the vehicle that the Applicant was driving struck an improvised explosive device; the Applicant sustained a Level III concussion in which he experienced loss of consciousness, disorientation, and amnesia with related physical injuries of bleeding from the ears.  He was awarded the Purple Heart.  However, there is no evidence in the Applicant’s medical or service record documenting that the Applicant was diagnosed with PTSD or TBI.  The NDRB requested and did review the Applicant’s medical records, to include any and all Department of Veterans Affairs (VA) treatments and Mental Health evaluations.  The Applicant’s records from the VA did not document any treatment for, or diagnosis of, PTSD or TBI.  During his personal interview, the Applicant stated that he has not been diagnosed with PTSD or TBI, but that he was suffering from unreported symptoms while home on leave following his combat deployment, which he contends contributed to his misconduct.  The Applicant further testified that he had not sought VA treatment due to the bar to benefits resulting from his Other Than Honorable discharge characterization.  The Applicant’s official military service record does not document a diagnosis of PTSD, however, in review of the additional post-service documentation and testimony provided by the Applicant, the NDRB determined that his PTSD was a mitigating factor associated with the in-service misconduct.  Moreover, the NDRB determined that the unique circumstances of this individual case, coupled with the Applicant’s meritorious service in combat, warranted additional consideration in the determination of overall characterization of service.  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 is warranted.

The Applicant should be aware that the VA has announced special VA enrollment access for PTSD and mental health treatment to combat veterans discharged under other than dishonorable conditions.  Effective Jan. 28, 2008, combat veterans discharged from active duty on or after Jan. 28, 2003 are eligible for combat veteran enhanced eligibility and enrollment placement into Priority Group 6 (unless eligible for higher enrollment Priority Group placement) for 5 years post discharge.  Additionally, the VA determines the eligibility for enrollment in its programs - independent of the Applicant’s characterization of service as determined by the Marine Corps.  The Applicant, as a combat veteran, is encouraged to contact his local VA affairs representative for more information and may request a review of his service record for a determination of eligibility for benefits from the VA.  Alternately, he may call 1-877-222-8387 or visit the following website for more information: http://www4.va.gov/healtheligibility/Library/pubs/CombatVet/CombatVet.pdf.

Issue 3:  (Decisional) (Equity)  RELIEF WARRANTED.  The Applicant contends that his post-service efforts are worthy of consideration.  The NDRB is authorized to consider post-service factors in the re-characterization of a discharge, however, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on good conduct or achievements in civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question.  Along with his DD Form 293, the Applicant submitted evidence of his post-service conduct and achievements, which included character reference letters, training certificates, certification of non-involvement with civil authorities, verification of employment, verification of real estate license, and unofficial transcripts from Carnegie Mellon University where he is pursuing a Bachelors Degree.  After careful consideration, the NDRB determined that the documentation submitted by the Applicant did demonstrate that the in-service misconduct was an aberration and that an upgrade to General was warranted.  Relief granted.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries and discharge process, the Board found the discharge was proper but not equitable.  Therefore, the awarded characterization of service shall change to GENERAL (UNDER HONORABLE CONDITIONS); however, 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.

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.  U.S. Code, Title 10, Section 1553 (d).

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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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