Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: lois.rojas
Company: NCPB

Docket No. MD11-01868

ex-Cpl, USMC

Current Discharge and Applicant’s Request

Application Received:  20110801
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: NONE REQUESTED

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	19981204 - 19981227  COG	Active:	USMC	19981228 - 20021213  HON

Period of Service Under Review:
Date of Current Enlistment:  20021214	Age at re-enlistment:  23
Period of Enlistment:  4 Years  1 Months
Date of Discharge:  20060207	Highest Rank:  SERGEANT
Length of Service:  03  Year(s)  01  Month(s)  25  Day(s)
Education Level:  12	AFQT:  37
MOS:  0621
Proficiency/Conduct Marks (# of occasions):  4.1 (NFIR) / 4.1 (NFIR)	     Fitness Reports:  AVAILABLE

Awards and Decorations (per DD 214):	Rifle MM, Pistol MM, PH, GCM (2), NMCAM, CAR (Iraq), GWOTEM (Iraq), GWOTSM, SSDR (2,) NDSM, NATO, PUC 

Periods of CONF:  NONE

NJP:  1

- 20050707:	Article 86 (Absent without leave - unauthorized absence, failure to go to appointed place of duty)
	Article 92 (Failure to obey lawful order or regulation - Failed to be in his appointed place of duty as directed by his Staff Noncommissioned Officer in Charge)
	Awarded: FOP  Suspended:  FOP        Vacated: FOP on 20050908 (due to continued misconduct)

SCM:  1

- 20060110:	Article 112a (Wrongful use, possession, etc., of a controlled substance; wrongful use of cocaine between 28 Aug and 07 Sept 2005 - 4626 ng/ml as confirmed by Naval Drug Lab urinalysis testing)
	Sentence: RIR E-4, FOP, 30 days restriction

SPCM:  NONE		CC:  NONE		Retention Warning Counseling:  NONE

Administrative Corrections to the Applicant’s DD 214

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

	Block 18, Remarks, should contain the statement: “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 981228 UNTIL 021213”

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 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:		    (Death Certificate)

	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: (1) The Applicant’s Primary Next of Kin (PNOK) and legal representative seek a change in the characterization of his service at discharge to Honorable, contending that the Applicant’s previous honorable enlistment, his meritorious service in combat, and the awarding of the Purple Heart Medal warrant consideration.  (2) The Applicant’s PNOK and legal representative further contend that his misconduct of record was the result of stress from depression and anxiety related to undiagnosed Post-Traumatic Stress Disorder (PTSD), which warrants consideration as extenuating and mitigating factors to his discharge and the characterization of service he received.

Decision

Date:  20120308	        DOCUMENTARY REVIEW	Location: Washington D.C.	 Representation: NONE

By a vote of 5-0 the Characterization shall change to GENERAL (UNDER HONORABLE CONDITIONS).
By a vote of 3-2 the Narrative Reason shall remain MISCONDUCT.

Discussion

The NDRB reviewed the Applicant’s personal statement; the Applicant’s statement indicated a post-service diagnosis by the Department of Veterans Affairs (VA) of PTSD from his combat service in Iraq.  The Applicant’s military service record documents that he is a combat veteran, having served honorably during  a combat deployment with an Infantry Battalion in Iraq in support of Operation IRAQI FREEDOM (OIF-I) from 15 Feb 2003 to 13 May 2003.  As such, 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.  Additionally, 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 Applicant’s parents are requesting, posthumously, to upgrade their son’s characterization of service at discharge.  The NDRB sends its sincere condolences and acknowledges this request is an important issue to the Applicant’s family.  Although requests by families to upgrade the characterization of a deceased service member are infrequent, they are not unique.  The NDRB reviews these cases in an objective manner as if the Applicant was still living; however, the board also takes into consideration that certain documentary or testimonial evidence may not be available or reasonable to obtain.

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 Applicant’s PNOK submitted two decisional issues related to the equity of the Applicant’s discharge for the NDRB’s consideration.  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 entered military service at age 18 with waiver to enlistment and induction standards for pre-service drug use (marijuana).  The Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs - in writing - on 03 December 1998 as a condition of his enlistment waiver process.  The Applicant enlisted with a four-year obligation and an Open Contract, ultimately receiving training as a Field Radio Operator.  The Applicant completed his first four-year enlistment obligation honorably; he requested reenlistment, which was approved, and he executed an immediate reenlistment, without a break in service, for a four year and 3 month period of obligated service.  The Applicant’s military service record documents that he is a combat veteran, having served honorably during  a combat deployment with an Infantry Battalion in Iraq in support of Operation IRAQI FREEDOM (OIF-I) from 15 Feb 2003 to 13 May 2003.  The military service record further documents that he was awarded the Combat Action Ribbon for his actions while engaged in direct combat operations against enemy forces and that he received the Purple Heart Medal for wounds suffered in action against enemy forces.  Moreover, the Applicant was awarded a Navy and Marine Corps Achievement Medal for heroic achievement due to personal actions in combat on the night of 26 March 2003 in the vicinity of Al-Kut, Iraq.

The Applicant’s official record of service documents no paragraph 6105 retention-counseling warnings while in service.  However, the record documents a nonjudicial punishment and summary court-martial during his current enlistment period for violation of the Uniform Code of Military Justice (UCMJ), specifically: violation of Article 86 (Unauthorized absence); violation of Article 92 (Failure to obey orders or regulations); and violation of Article 112(a) (Wrongful use, possession, etc. of a controlled substance (cocaine) - one specification of wrongful use).  Based on the Article 112(a) violation, by service policy, processing for administrative separation was mandatory.  When notified of the administrative separation process using the administrative board procedure, the Applicant elected to waive his right to consult with a qualified legal counsel, waived his right to present his case for retention and characterization of service to an administrative hearing board, and elected not to provide written matters to the Separation Authority for his consideration.  The Applicant was advised in writing that the least favorable characterization of service he could receive was Under Other Than Honorable Conditions and that characterization was what the Commander was recommending.  The Separation Authority reviewed the chain of command’s recommendations, found that a preponderance of the evidence supported the finding of misconduct, and concurred with the proposed characterization of service at discharge; on 7 February April 2006, the Applicant was involuntarily discharged and was assigned a corresponding re-entry code of RE-4B (not recommended for reenlistment, in-service drug abuse).   

(Decisional issues) (Propriety/Equity)  PARTIAL RELIEF WARRANTED.  (1) The Applicant seeks a change in the characterization of his service at discharge to Honorable, contending that the Applicant’s previous honorable enlistment, his meritorious service in combat, and the awarding of the Purple Heart Medal warrant consideration.  (2) The Applicant further contend that his misconduct of record was the result of stress from depression and anxiety related to undiagnosed PTSD, which warrants consideration as an extenuating and mitigating factor to his discharge and the characterization of service he received.

Propriety - The Applicant was found guilty of violating Article 112(a) (Wrongful use, possession, etc. of a controlled substance) at summary court-martial.  The basis for establishing that the Applicant had committed the offense was Naval Drug Lab Urinalysis testing, which confirmed the presence of cocaine in the Applicant’s body.  During the summary court-martial proceedings, the Applicant admitted to his illegal use while at a local bar and restaurant.  By service policy, confirmed illegal drug use mandates processing for administrative separation.  The Applicant’s service record reflects that he was advised properly of the separation recommendation by his chain of command; he was afforded the opportunity to exercise his rights and acknowledged all such in writing, to include waiving his right to counsel and presenting his case for retention to an administrative board of members.  The Separation Authority reviewed the evidence of record and determined that it satisfied the requirements as outlined in the applicable regulation; accordingly, he directed the Applicant be discharged.  He directed that the Applicant be assigned a corresponding reentry code of RE-4B (not recommended for reenlistment - in-service drug abuse).  The NDRB determined that the evidence of record did establish and meet the required elements of the specified basis for discharge (Misconduct - Drug Abuse) and that the Separation Authority actions were proper.  Accordingly, relief based on matters of propriety is not warranted.

Equity Issue 1 - The Applicant’s PNOK seeks a change in the characterization of his service at discharge to Honorable, contending that his previous honorable enlistment, his meritorious service in combat, and the awarding of the Purple Heart Medal warrant consideration.  The Applicant completed his first enlistment period with an Honorable characterization of his service; for that period of time, he received an Honorable discharge.  However, each period of enlistment is an independent obligation and characterization of service is determined for each obligated period of service, independently.  Despite a service member’s prior record of service, 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, requiring mandatory processing for administrative separation, regardless of grade, performance, service record, combat service, 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 for up to 5 years, if adjudicated and awarded as part of a sentence by a special or general court-martial.  The Applicant’s command did not opt to pursue a punitive discharge, instead they chose the more lenient, nonpunitive administrative discharge process following an administrative summary court-martial.  Based on the seriousness of the offense, coupled with repetitive and escalating nature of misconduct by a noncommissioned officer, the chain of command recommended separation with an Under Other Than Honorable Conditions characterization of service at discharge.  The NDRB determined that relief based on this issue is not warranted.

Equity Issue 2 - The Applicant’s PNOK contends that his misconduct of record was the result of stress from depression and anxiety related to undiagnosed PTSD, which warrants consideration as extenuating and mitigating factors to his discharge action and the characterization of service he received.  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 requested and received the Applicant’s service medical record and VA medical treatment records.  Post-military service, the Applicant was diagnosed by appropriately credentialed mental health care 

providers with PTSD, directly related to his combat service in Iraq; this conditions was determined severe enough to warrant a disability rating of 70%.  After an in-depth review of the Applicant’s service record and his in-service and post-service medical records, the NDRB determined that the contention of PTSD existing in-service, prior to the misconducts of record, was established.  Given the Applicant’s combat deployment history, his in-service mental health issues, the diagnosed PTSD (severe), and the unique issues associated with this individual discharge action, the NDRB determined that the Applicant’s PTSD and associated symptoms were mitigating and contributory factors in his misconduct and that some form of relief was warranted.

When the quality of a member’s service has met the standards of acceptable conduct and performance of duty for military personnel, it is appropriate to characterize that service under Honorable conditions.  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.  However, 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 Applicant’s record clearly documents his acceptable conduct while deployed in a combat zone; for this service, he received numerous awards and accolades and warranted the awarding of an Honorable discharge at the completion of his first enlistment.  However, the record of service does not document service so meritorious that it would completely overcome the Applicant’s disregard for good order and discipline and use of illegal drugs - which constituted acts or omissions that were a significant departure from the conduct expected of service members, particularly of his rank as Sergeant.  Given the facts of the record, the information provided for the Applicant, and the Applicant’s combat service, the NDRB determined that the Applicant’s conduct, which forms the primary basis for determining the character of his service, was honest and faithful, but significant negative aspects of the member’s conduct did still outweigh the overall positive aspects of his record.  As such, given the facts and circumstances unique to this case, the NDRB determined that partial relief was warranted based on equitable grounds.  The NDRB voted 5-0 to upgrade the characterization of service at discharge to General (Under Honorable Conditions), but, by a vote of 3-2, that no change to the narrative reason for separation is warranted.  Partial relief warranted.  Full relief to Honorable was not granted due to the serious nature of the misconduct, particularly misconduct by a noncommissioned officer.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, and the discharge process, the NDRB determined that the discharge was proper but not equitable.  Therefore, the awarded characterization of service shall change to GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain MISCONDUCT.  The Applicant’s Primary Next of Kin remains eligible for a personal appearance hearing for a period of fifteen years from the date of the Applicant’s discharge.  The Applicant’s Primary Next of Kin is directed to the Addendum, specifically the paragraph 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), 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