ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20110815
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)	20000720 - 20000807  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20000808	Age at Enlistment:  28
Period of Enlistment:   Years   Months
Date of Discharge:  20040623	Highest Rank:  
Length of Service:    Year(s)    Month(s)  16  Day(s)
Education Level:  	AFQT:  39
MOS:  0811
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle      

NJP:  
- 20010202:	Article  (UA 2145, 20010115-20010130, 15 days from MOS school Ft Sill, OK)
	Awarded:     Suspended:    (suspend 6 months)

- 20020128:	Article  (UA 0730, 20020108-0730, 20020109, 1 day)
	Article  (Failure to obey an order from Staff Sergeant)
	Awarded:     Suspended:   (suspend 6 months)

SCM:  
- 20040426:	Article  (Wrongful use of controlled substance - marijuana, o/o 20030308)
	Sentence: RIR (to E-1)  (20040426-20040519, 24 days) 

SPCM:  	CC:  

Retention Warning Counseling:  
- 20010202:	For unauthorized absence.

- 20020604:	For your negligence while serving as Recorder for Gun 1, Battery B, 1st Battalion 10th Marines during a firing exercise at Ft. Bragg, NC on 20020418.  Your disregard for proper procedures in maintaining the recorder sheets on Gun 1 led to a serious mistake in recording and announcing the fire order for a live fire mission.  Your mistake was compounded with errors committed by the Section Chief for Gun 1.

Administrative Corrections to the Applicant’s DD 214
The NDRB did note administrative error(s) on the original DD Form 214:
	
	  “(1) 20020108, (15) 20010115-20010129, (24) 20040426-20040519

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.	Applicant seeks a discharge upgrade to obtain veteran’s benefits.  
2.	Applicant contends his record of service warrants consideration for a discharge upgrade.  
3.	Applicant contends his discharge was improper/inequitable due to an unfair trial.
4.	Applicant contends he suffered from Post-Traumatic Stress Disorder (PTSD) and received no assistance, which then led to his drug abuse misconduct.
Decision

Date:  20120202		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 X, Section 1553 (d)(1), the Naval Discharge Review 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 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 Board completed a thorough review of the circumstances that led to  discharge and the discharge process to ensure  discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included  6105 counseling retention warnings for unauthorized absence (2 Feb 2001) and negligence during a live-fire exercise (4 Jun 2002) and   for  of the Uniform Code of Military Justice (UCMJ): Article  (Unauthorized absence, 2 specifications: absent from MOS school Ft Sill, OK, 2145 on 15 Jan 2001 to 30 Jan 2001, terminated by his surrender; and 0730, 8 Jan 2002 to 0730, 9 Jan 2002) and Article  (Failure to obey an order or regulation, failed to obey an order from a Staff Sergeant).  The record also revealed  Summary Court-Martial for  of the UCMJ: Article  (Wrongful use, possession, etc of a controlled substance, marijuana, as evidenced by NAVDRUGLAB msg 11627Z Mar 04).  The record also indicated that the Applicant had two drug waivers for using marijuana  prior to entering the Marine Corps and testing positive for marijuana while in the Delayed Entry Program.  During the enlistment process, he acknowledged  complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs and the consequences of violation.  Based on the Article 112a violation, processing for administrative separation is mandatory per the Marine Corps Separation and Retirement Manual (MARCORSEPMAN).  

When notified of administrative separation processing using the  procedure on 27 Apr 2004, the Applicant   rights to consult with a qualified counsel, submit a written statement, and request an administrative separation board.  In his endorsement of the Applicant’s administrative separation package, the Commanding Officer (CO), 1st Battalion, 10th Marines stated, “(The Applicant) no longer deserves to serve in our beloved Corps.  SNM’s conviction and guilty plea illustrated that he has turned his back on the Marine Corps and most importantly his fellow Marines.  Illicit drug use will not be tolerated in 1/10 and all users will be recommended for administrative separation.  This blatant disregard for our Corps’ values has negatively affected the harmony of this unit and (the Applicant’s) prior NJPs show his disregard for authority.  Due to his deplorable behavior and unconcern for the unit’s readiness, I am recommending that he be separated Under Other Than Honorable Conditions.”  On 18 May 2004, the CO, 10th Marine Regiment, endorsed the Applicant’s separation package stating, “I have thoroughly reviewed (the Applicant’s) service record and command recommendations.  This Marine possesses no regard for the rules and regulations that govern our organization.  (The Applicant) has received six Page 11 entries, a 6105 counseling for being UA, and two nonjudicial punishments for being UA and disobeying a direct order.  On 26 Apr 2004, (the Applicant) received a summary court-martial for drug use (THC) abuse.  (The Applicant’s) guilty plea demonstrates how this Marine has turned his back on the Marine Corps, and most importantly his fellow Marines.  He knew the Marine Corps’ policy on drug use and still chose to disobey it.”  The Applicant was separated from the Marine Corps on 23 Jun 2004 with an Under Other Than Honorable Conditions discharge due to Misconduct (Drug Abuse).

:  (Nondecisional) The Applicant seeks a discharge upgrade to obtain veteran’s 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.

:  (Decisional) ()  .  The Applicant contends his record of service warrants consideration for a discharge upgrade.  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 112a meets this standard.  During the enlistment accession process, the Applicant received two drug waivers for using marijuana  prior to entering the Marine Corps and testing positive for marijuana while in the DEP.  He acknowledged  complete understanding of the Marine Corps Zero Tolerance Policy Concerning Illegal Use of Drugs and the consequences of violation.  While he may feel personal stress (related to anxiety, health problems, family issues, and an upcoming second deployment) was the underlying causes of his misconduct, the record clearly reflects his misconduct was willful and demonstrated he was unfit for further service.  The evidence of record does not demonstrate the Applicant was not responsible for his conduct or he should not be held accountable for his actions.  His record of service contained multiple Page 11 counseling entries (for weight control, inability to maintain minimum fitness level, and substandard performance during unit PT), two retention counseling warnings (for UA and negligence during a live-fire exercise), two NJPs (for UA and failure to obey an order), and a Summary Court-Martial for illegal use of marijuana.  When a  service has been honest and faithful, it is appropriate to characterize that service under Honorable conditions.  An Under Other Than Honorable Conditions discharge is warranted when a Marine commits or omits an act that constitutes a significant departure from the conduct expected from a Marine.  The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of conduct expected of all Marines, regardless of his grade and length of service, and falls short of what is required for an upgrade in the characterization of service.  Relief denied.

:  (Decisional) ()  .  The Applicant contends his discharge was improper/inequitable due to an unfair trial.  In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  With respect to court-martial proceedings, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts.  Moreover, after consideration of all the available documentation (to include NAVDRUGLAB msg 11627Z May 04), the NDRB found no evidence of command impropriety with regards to the 26 Apr 2004 Summary Court-Martial proceeding and the subsequent Convening Authority action, which affirmed the court-martial findings and imposed punishment.  Accordingly, the NDRB found this issue to be without merit and did not provide a basis for which relief could be granted.  Relief denied.

Issue 4:  (Decisional) ()  .  The Applicant contends he suffered from PTSD and received no assistance, which then led to his drug abuse misconduct.  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 medical or service records to support the Applicant’s claim, nor did the Applicant produce any medical diagnosis by competent medical authority to support his claim.  The Applicant submitted letters from relatives and friends noting his erratic behavior after his deployment to Iraq, but he did not provide any medical diagnosis from competent medical authority to validate his claims of PTSD.  While he may feel that this was the underlying cause of his misconduct, the record clearly reflects his willful misconduct, both before and after his deployment to Iraq, and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Without any credible evidence available to support the Applicant’s claim, the Board found this issue did not provide a basis for which relief could be granted.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries and the administrative separation process, the Board found   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 for additional information.

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