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

Docket No. MD11-01996

ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20110830
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MARCORSEPMAN 

Applicant’s Request:	Characterization change to: 
	Narrative Reason change to: RE1/COMPLETION OF SERVICE

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	20000616 - 20000723  	Active:	  20000724 - 20031001 HON   

Period of Service Under Review:
Date of Current Enlistment:  20031002	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20050605	Highest Rank:  
Length of Service:    Year(s)    Month(s)  05  Day(s)
Education Level:  	AFQT:  37
MOS:  0311
Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle EX (3rd Award)  (Combat “V”)     
	 (2) JMUA  LoA   CoC 

Periods of UA/CONF:  

NJP:    	SCM:    	SPCM:    		CC:    	Retention Warning Counseling:  

Administrative Corrections to the Applicant’s DD 214

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

	  “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 000724 UNTIL 031001”
	
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:	

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

Applicant’s Issues

1.	Applicant seeks RE code and discharge upgrades to reenlist in the U.S. Armed Forces.
2.	Applicant contends his discharge was improper/inequitable, because the evidence used to process him for discharge did not include the lab test results.
3.	Applicant contends untreated Post-Traumatic Stress Disorder (PTSD) led to the misconduct for which he was separated and diminished his mental capacity to properly defend himself at an Administrative Separation Board (ASB) proceeding.

Decision

Date:  20120322		Location: Washington D.C.	 Representation: 

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

Discussion

As a result of the Applicant’s claims of PTSD from combat, 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 Applicant deployed to, and engaged in combat operations in, Iraq in support of Operation Iraqi Freedom.

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 two decisional issues for the Board’s consideration.  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 did not include any 6105 counseling retention warnings, commanding officer nonjudicial punishment (NJP), or trial by courts-martial.  The record did reveal that the Applicant tested positive for amphetamines after being admitted for evaluation and treatment at Naval Medical Center San Diego as a result of suicidal ideation (due to recent marital discord and depression).  The Applicant was hospitalized for five days (2-7 Sep 2004) while undergoing initial evaluation and treatment.  The Applicant was given an initial diagnosis of Amphetamine Abuse and Adjustment Disorder with Depressed Mood (Relationship Problems was also listed on AXIS IV).  The record also revealed that the Applicant had a pre-service drug waiver for using marijuana five times prior to entering the Marine Corps,  acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 15 June 2000.  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 6 Apr 2005, the Applicant exercised his right to consult with a qualified counsel, but waived his rights to submit a written statement and request an Administrative Separation Board.  On 19 Apr 2005, the Commanding Officer, Headquarters and Service Battalion (HQBN) endorsed the Applicant’s administrative separation package recommending a General (Under Honorable Conditions) discharge.  Her endorsement stated “…The factual basis for this recommendation is from (the Applicant’s) positive urinalysis on 2 Sep 2004 for the illegal use of drugs.  The Commandant’s policy on drugs is clear; illegal drug use will not be tolerated….  Although the least favorable characterization of service (the Applicant) could receive is Other Than Honorable, I am recommending his characterization of service be General (Under Honorable Conditions) due to his outstanding performance prior to the incident and his continued performance following the incident.  Since (the Applicant’s) arrival at HQBN in Nov 2003, he has carried out his duties in an exemplary manner.  As a Combat Readiness Training Instructor, he has increased the rifle and pistol marksmanship scores by providing sound training to the Marines of this Battalion.  (The Applicant’s) case is one in which a Marine, with a clean record, made a mistake.  He has openly admitted to his mistakes and takes full responsibility for his actions.  (The Applicant) continues to go above and beyond to complete whatever task he is given and maintains a positive attitude.”  On 1 Jun 2005, the Applicant submitted a written statement to his Company Commander, which stated, “There are no reasons why I used illegal substance, I was blinded by my deep depression and didn’t live up to the Marine Corps standard.  I turned myself in when I was under the influence and 

decided that I needed help, my command referred me to Balboa Naval Hospital and I tested positive from PTSD and drug abuse.  I have no excuse and I take full responsibility for my action.  I am getting out with a General Discharge because of my service record.”  On 17 May 2005, the Separation Authority directed that the Applicant be separated from the Marine Corps with a General (Under Honorable Conditions) discharge due to Misconduct (Drug Abuse).  The Applicant was discharged on 5 Jun 2005 as directed.

:  (Nondecisional)  The Applicant seeks RE code and discharge upgrades to reenlist in the U.S. Armed Forces.  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 Board for Correction of Naval Records 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.

:  (Decisional) ()  .  The Applicant contends his discharge was improper/inequitable, because the evidence used to process him for discharge did not include the lab test results.  The NDRB conducted a detailed review of the Applicant’s records to determine whether his discharge met the pertinent standards for propriety and equity.  During its review, the Board noted that the Applicant tested positive at Naval Medical Center San Diego after his admission that resulted from a command referral for suicidal ideation.  The Applicant’s service records did not contain the NAVDRUGLAB test results; however, physician documentation from Naval Medical Center San Diego clearly states the Applicant tested positive for amphetamine upon admission (on or about 2 Sep 2004).  Further, on 1 Jun 2005, the Applicant submitted a written statement to his Company Commander, which stated, “There are no reasons why I used illegal substance, I was blinded by my deep depression and didn’t live up to the Marine Corps standard.  I turned myself in when I was under the influence and decided that I needed help, my command referred me to Balboa Naval Hospital and I tested positive from PTSD and drug abuse.  I have no excuse and I take full responsibility for my action.  I am getting out with a General Discharge because of my service record.”  After careful review of all the available evidence, the Board determined that the Applicant’s administrative discharge for drug abuse was proper based on the evidence resulting from his positive urinalysis test result at Naval Medical Center San Diego (2 Sep 2004) and the Applicant’s admission to his chain of command (1 Jun 2005).  Accordingly, the NDRB found this issue to be without merit and did not provide a basis for which relief could be granted.  Relief denied.

:  (Decisional) ()  .  The Applicant contends untreated PTSD led to the misconduct for which he was separated and diminished his mental capacity to properly defend himself at an ASB proceeding.  The government enjoys a presumption of regularity in the conduct of its affairs.  While he may feel that this was the underlying cause or mitigation for his misconduct, the record clearly reflects his willful misconduct 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.  Moreover, the NDRB could find no evidence, nor did the Applicant submit any evidence, to indicate he had been diagnosed with PTSD.  The evidence available clearly indicates in-service diagnoses of Amphetamine Abuse and Adjustment Disorder with Depressed Mood, but nothing related to post-traumatic stress.  The Board did note that the Applicant’s service did include combat service in Iraq as evidenced by being awarded the Navy Marine Corps Achievement Medal (with Combat “V”), Combat Action Ribbon, Presidential Unit Citation, and Iraq Campaign Medal.  Lastly, the NDRB conducted an exhaustive review of the records and found no evidence to support, nor did the Applicant provide any evidence to indicate, that he attempted to utilize the numerous services available for service members who undergo personal problems during their enlistment such as the Navy Chaplain, Medical or Mental Health professionals, Navy Relief Society, Family Advocacy Programs, or even the Red Cross prior to testing positive for amphetamines at Naval Medical Center San Diego.  The NDRB recognizes that serving in the U.S. Marine Corps is challenging.  However, all members of the Naval Services are expected to uphold the high standards of conduct as evidenced in our Core Values of Honor, Courage, and Commitment, regardless of the environment or mission in which assigned.

Despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Naval Service in order to maintain good order and discipline; violation of Article 112a meets this standard.  The Applicant signed the USMC Drug Policy on 15 Jun 2000 and received an enlistment waiver for illegal use of marijuana five times prior to accession into the Marine Corps.  He was fully aware there is a zero-tolerance policy for drug abuse, and he acknowledged the consequences.  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.  Per the MARCORSEPMAN, when a  service has been honest and faithful, 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 outweigh the positive aspects of the member’s service record.  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, especially considering his grade, experience and length of service, and falls short of what is required for an Honorable upgrade in the characterization of service.  After careful consideration of all the available evidence, acknowledging the Separation Authority’s award of a less severe characterization of service than is normally awarded for drug abuse misconduct by a noncommissioned officer, and with no evidence submitted by the Applicant to rebut or otherwise question the presumption of regularity in this case, the NDRB determined that the Applicant’s discharge was proper and equitable, and in accordance with the applicable orders and directives in effect at the time of his separation.  Additionally, the NDRB determined that the Applicant’s claim of PTSD did not mitigate his misconduct.  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.

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.

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