ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20110607
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MARCORSEPMAN 

Applicant’s Request:	Characterization change to: 
	Narrative Reason change to: SECRETARIAL AUTHORITY

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	20021028 - 20030707  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20030708	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20060629	Highest Rank:  
Length of Service:    Year(s)    Month(s)  22  Day(s)
Education Level:  	AFQT:  Unreadable
MOS:  0311
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle , , , , , , 

Periods of CONF:  

NJP:  

- 20040122:	Article  (UA 0200, 20040117 - 1900, 20040118, 1 day)
	Awarded:    Suspended:  

- 20040219:	Article  (Break restriction), 2 specifications
	Specification 1: 0700, 20040131
	Specification 2: 2000, 20040203
	Awarded: RIR    Suspended:  

- 20050615:	Article  (Violate direct order to not consume alcoholic beverages while under the age of 21)
	Article 121: (Wrongfully appropriate food of a value of $18.70)
	Article 123: (With intent to defraud, falsely make the signature of an LCpl as an endorsement to Pizza City)
	Awarded:     Suspended:  

- 20050729:	Article  (Contempt and disrespectful language)
	Awarded:   Suspended:  

- 20060425:	Article  (UA), 2 specifications
	Specification 1: Company formation at 1800, 20060220
	Specification 2: 20060222 - 20060329, 35 days
	Article  (Drugs - cocaine 6041 ng/ml)
	Awarded:     Suspended:  

SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  

- 20040108:	For your diagnosed physical condition not a disability, specifically foot pain, and any resultant or aggravated condition that interferes with the effective performance of your duties.

- 20040209:	For your violation of Article 134.

- 20050804:	For my conviction of Article 91 on 20050729.

- 20060420:	For your violation of Article 112a and 134 resulting in a NJP.

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

Decisional issues: The Applicant contends that his discharge characterization of service is inequitable in light of his combat service, awards, and decorations.  The Applicant further contends that his ability to serve satisfactorily was affected by his Post-Traumatic Stress Disorder (PTSD) symptoms and lack of care from his unit upon his return from a combat theater of operations.

Decision

Date:  20111019 	              Location: Washington D.C.      Representation: 

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  .

Discussion

In accordance with U.S. Code, Title 10, Section 1553 (d) (1), the Board included a member who is a physician, clinical psychologist, or psychiatrist.  In accordance with section 1553 (d) (2), the service secretary expedited a final decision and accorded the case sufficient priority to achieve an expedited resolution.

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 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 the standards of discipline of the Naval Service.  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 entered military service at age 18 with a waiver to enlistment and induction standards for pre-service drug use – marijuana (11 uses).  The Applicant enlisted with a guaranteed contract of Infantry Option.  The Applicant completed two years and eleven months of his four-year enlistment obligation.  The military service record further documents that he is a combat veteran, having deployed as an Infantryman with an Infantry Battalion in the Al-Anbar Province of Iraq in support of Operation IRAQI FREEDOM (OIF) from June 2004 to January 2005.  The Applicant participated in Operation Phantom Fury, Fallujah, Iraq.  The Applicant’s official record of service includes four 6105 retention-counseling warnings.  Additionally, it further contains five nonjudicial punishments for violations of the Uniform Code of Military Justice (UCMJ), specifically:

•	Article 86 (Absence without leave - 1 specification of failure  to go to appointed place of duty and 2 specifications of absenting himself from his unit, without proper authority, and remaining so absent for 1 day and 35 days)
•	Article 91 (Insubordinate conduct toward warrant, noncommissioned, petty officer by contempt and disrespect to a Staff Duty Noncommissioned Officer)
•	Article 92 (Failure to obey an order or regulation - underage consumption of alcoholic beverages)
•	Article 112(a) (Wrongful use, possession, etc of a controlled substance - cocaine 6,041 ng/ml per Naval Drug Lab positive confirmation urine sample) 
•	Article 121 (Larceny - Wrongful appropriation of a value of $500.00 or less)
•	Article 123 (Checks, insufficient funds or intent to deceive)
•	Article 134 (General Article - Breaking restriction, 2 specifications).

Based on the Article 112(a) violation, by service policy, processing for administrative separation was mandatory.  The Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs - in writing - as a required function of his waiver process to enlistment on 25 October 2002.  When notified of the administrative separation process using the board notification procedure, the Applicant elected to waive his right to consult with a qualified counsel, to submit a written statement to the Separation Authority, or to request an administrative board hearing to present his case for retention or characterization of service.

(Decisional issues) ()  .  The Applicant contends that his discharge characterization of service is inequitable in light of his combat service, awards, and decorations.  The Applicant further contends that his ability to serve satisfactorily was affected by his PTSD symptoms and a lack of care from his unit upon his return from a combat theater of operations.

Propriety - The Applicant was processed administratively for separation from the service in accordance with paragraph 6210.5 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) - Misconduct (Drug Abuse).  Processing for separation was mandatory by service policy due to his violation of Article 112(a).  The Applicant was notified, in writing, of the proposed separation action on 26 April 2006; he was advised that the least favorable characterization of service warranted was Under Other Than Honorable Conditions and that this was what the command was recommending he receive.  The chain of command agreed with the recommendation for separation and positively endorsed the action, concurring with the recommendation for characterization of service.  On 26 June 2006, the Separation Authority (General Court-Martial Convening Authority) reviewed the evidence of record and the gravity of the charges and concurred.  The Separation Authority approved the command’s recommendation for separation and found that a preponderance of the evidence supported the finding of misconduct.  As such, he directed the Applicant to be discharged - Under Other Than Honorable Conditions - for Misconduct (Drug Abuse).  The Applicant was assigned the corresponding separation code of HKK1 (Drug Abuse - Board Waived) and a reentry code of RE-4B (not recommended for reenlistment - in service drug abuse).  The Applicant was discharged on 29 June 2006.  Having reviewed the discharge action in detail and the corresponding supporting documentation, the NDRB determined that the Applicant was properly discharged in accordance with the regulations governing the service.  Relief denied.

Equity - Despite a service member’s prior record of service, to include combat service and awards, certain serious offenses warrant separation from the Naval Service in order to maintain good order and discipline.  Violation of Article 112(a) is one such offense, which requires mandatory processing for administrative separation, regardless of grade, performance, service record, or time in service.  Moreover, this action usually results in an unfavorable characterization of service at 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 pursue a punitive discharge but opted instead for the more lenient administrative discharge.  Based on the seriousness of the offenses committed, coupled with the repetitive violations of the UCMJ, the chain of command recommended administrative separation Under Other Than Honorable Conditions.

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.  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.  Based on the Applicant’s record of service (5 NJPs and 4 retention warnings), the NDRB determined that the Applicant had engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service and that the characterization of service received was warranted.     

The Applicant contends his problems were attributed to PTSD and that his command attempted to influence or prevent access to mental health evaluation and treatment.  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 reviewed the Applicant’s record of medical treatment.  The Applicant was seen and evaluated for mental health concerns regarding anxiety and nightmares while deployed in theater (Sept 05); the initial diagnosis was combat stress with noted history of pre-service undisclosed treatment of anger management.  The Applicant was found to not be suicidal or homicidal or at risk at the time and was recommended to seek mental health follow-up with the Division Psychiatrist upon re-deployment to his home station.  The Applicant’s record reflects multiple follow-ups with the unit Medical Staff for various medical issues, but no follow-up or request for mental health treatment until June 06 while processing for administrative separation.  He was prescribed an anti-anxiety medication and was ultimately discharged.

The NDRB found no medical diagnosis of PTSD in the record to support the Applicant’s claim, nor did the Applicant produce any medical diagnosis, by any credentialed mental health care provider, to support this contention.  While the Applicant may feel that symptoms of PTSD were the underlying cause of his misconduct, the record clearly reflected willful (and repetitive) misconduct, beginning before he deployed to a combat zone (2 NJPs) and ending with a period of 39 days of unauthorized absence and wrongful use of cocaine.  The repetitive misconduct, coupled with continued violation of multiple retention warnings, demonstrated that retention was not warranted, that the Applicant was unfit for further service, and that the Applicant had acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service, and that the characterization of service as received was warranted.

After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB determined that the narrative reason for separation and the resulting characterization of service at discharge was proper, was equitable, was warranted, and was and is consistent with the characterization of discharges given to others in similar circumstances.  Accordingly, relief as requested, is 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   Therefore, the awarded characterization of service shall   and 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 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