Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: nuchy.garcia-anglin
Company: NCPB

Docket No. MD12-01276

ex-LCpl, USMC

Current Discharge and Applicant’s Request

Application Received:  20120516
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 OR GENERAL (UNDER HONORABLE CONDITIONS)
	Narrative Reason change to: NONE REQUESTED
	
Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	20030708 - 20030915  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  20030916	Age at Enlistment:  18
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  20081201	Highest Rank:  CORPORAL
Length of Service:  05  Year(s)  02  Month(s)  15  Day(s)
Education Level:  12	AFQT:  50
MOS:  0621
Proficiency/Conduct Marks (# of occasions):  3.7 (7) / 2.7 (9)	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	Rifle EX GCM CAR (Iraq) SSDR (2) ICM HSM GWOTSM NDSM NUC MUC CoC

Periods of UA: 20080325 - 20080502, 40 days

In Hands of Civilian Authorities: 20061025 - 20061029, 5 days and 20070207 - 20080324, 411 days

NJP:  2

- 20040422:	Article 92 (Failure to obey order or regulation, drinking under the legal age) 
	Awarded: FOP RESTR EPD  Suspended:  RESTR EPD (25 days)

- 20080502:	Article 86 (Absence without leave 0700, 20080325 until 0800, 20080502, 40 days)
	Article 112a (Wrongful use, possession, etc. of controlled substances, 3 specifications)
	Specification 1: Amphetamine (6 ng/ml) and Morphine (23,708 ng/ml) on or about 20061010
	Specification 2: Methamphetamine (366 ng/ml) on or about 20061030
	Specification 3: Cocaine (1036 ng/ml); Amphetamine (336 ng/ml); Methamphetamine (2,472 ng/ml) on or about 20061003  
	Awarded: RIR FOP RESTR  Suspended:  RESTR

SCM:  NONE	SPCM:  NONE	CC:  NFIR

CIVIL ARREST:  2

- 20061024:	Charges:  DUI

- 20070207:	Charges:  Human trafficking, resisting arrest

Retention Warning Counseling:  4

 - 20040422:	 For violation of Article 92 by drinking under the legal age. 
           
            - 20071109:    For not being promoted for the December period due to lack of judgment.
	
            - 20071214:    For not being promoted for the January period due to lack of judgment.

            - 20080114:    For lack of judgment which resulted in SNM being eligible but not recommended for promotion during 	the month of February.
 
Administrative Corrections to the Applicant’s DD 214

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

	Block 12a, Date Entered AD This Period, should read: “2003 09 16”
	Block 29, Dates of Time Lost During This Period, should read “(5) 20061025-20061029, (6) 20070201-20070206, (411) 20070207 - 20080324, (40) 20080325-20080502”
		
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.	The Applicant contends he waived his right to legal counsel but did not reasonably know or understand his rights due to his Post-Traumatic Stress Disorder (PTSD) and secondary drug abuse.
2.	The Applicant contends he completed more than his four year contract and deserves an Honorable discharge.
3.	The Applicant contends PTSD led to self-medicating with illicit drugs.
4.	The Applicant contends he should have received a medical discharge due to his PTSD.
5.	The Applicant contends he did not receive appropriate treatment for his drug abuse.
6.	The Applicant contends he did not receive appropriate treatment for his PTSD.

Decision

Date:  20130411	DOCUMENTARY REVIEW	Location: Washington D.C.	 Representation: American Legion

By a vote of 5-0 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS.
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT.

Discussion

As a result of the Applicant’s claim of PTSD, 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’s service record documents completion of a deployment in the Al-Anbar Province of Iraq from January to August 2006, conducting combat operations in support of Operation IRAQI FREEDOM.  In addition, the Applicant’s Department of Veterans Affairs (VA) hearing dated 28 August 2009 annotates the Applicant had previously deployed to the Babil Province of Iraq for approximately a month and a half on or about December 2004.

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’s record of service included four 6105 counseling warnings, two nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, 40 days), Article 92 (Failure to obey order or regulation, drinking under the legal age), and Article 112a (Wrongful use, possession, etc. of controlled substances, 3 specifications: Specification 1: Amphetamine (6 ng/ml) and morphine (23,708 ng/ml) on or about 20061010, Specification 2: Methamphetamine (366 ng/ml) on or about 20061030, and Specification 3: Cocaine (1036 ng/ml), amphetamine (336 ng/ml), and methamphetamine (2,472 ng/ml)), and two civilian arrests for DUI, human trafficking, and resisting arrest.  The Applicant did not have a pre-service drug waiver for using illicit drugs prior to entering the Marine Corps.  The Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 26 June 2003.  Based on the Article 112a violation, processing for administrative separation is mandatory.   When notified of administrative separation processing using the administrative board procedure, the Applicant waived his rights to consult with a qualified counsel, submit a written statement, and request an administrative board.

Issue 1:  (Decisional) (Propriety)  RELIEF NOT WARRANTED.  The Applicant contends he waived his right to legal counsel but did not reasonably know or understand his rights due to his PTSD and secondary drug abuse.  The Applicant further contends that this lack of legal counsel so undermined the separation proceedings that a just result was not produced.  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 counsel’s statement that “he may have had a legally diminished capacity to understand the proceedings” and the VA’s PTSD diagnosis do not overcome the government’s presumption of regularity that the Applicant had a legal capacity of understanding and that his legal advice was proper.  Relief denied.

Issue 2:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends he completed more than his four year contract and deserves an Honorable discharge.  On 16 September 2003, the Applicant entered his four-year obligated active service contract and was separated on 01 December 2008.  Although the Applicant was discharged over four years after he entered active service, the Applicant had significant periods of unauthorized absence and being in the hands of civilian authorities that were not creditable periods toward his obligated active service.  As a result, the Applicant did not reach the end of his obligated active service but was properly and equitably discharged Under Other Than Honorable Conditions for Misconduct (Drug Abuse) before the end of his contract.  Relief denied.

Issue 3:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends PTSD led to self-medicating with illicit drugs.  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.  Although the Applicant contends the VA found his conduct was not due to willful misconduct, the NDRB is not bound by VA decisions.  Decisions reached by the VA to determine if former servicemembers rate certain VA benefits do not affect previous discharge decisions made by the Marine Corps.  The criteria used by the VA in determining whether a former servicemember is eligible for benefits are different than that used by the Marine Corps when determining a member’s discharge characterization.  The Applicant attempted to smuggle humans across the border on two known occasions.  The first attempt resulted in him crashing a vehicle and fleeing on foot.  The second attempt involved the Applicant ramming his truck into another vehicle in an effort to escape and resist arrest.  During the VA hearing, the Applicant stated he was not under the influence of drugs when he attempted to traffic humans across the border.  Further, the Commander, 1^st Marine Division (Rein) letter dated 11 September 2008 shows the Applicant’s command took into consideration the Applicant’s PTSD in determining whether to separate the Applicant and the Applicant’s characterization of service.  The record reflects willful misconduct both before and after the Applicant’s deployments.  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.  Underage drinking, driving under the influence, multiple positive urinalyses for amphetamine, methamphetamine, morphine, and cocaine, and human trafficking were all conscious decisions to violate the tenets of honorable and faithful service.  The NDRB determined that any mitigation due to the Applicant’s PTSD would be inappropriate and the characterization of service was warranted.  Relief denied.

Issue4:  (Decisional) (Propriety)  RELIEF NOT WARRANTED.  The Applicant contends he should have received a medical discharge due to his PTSD.  Per regulations, the initiation and submission of medical boards are at the discretion of the individual physician.  There is no indication in the evidence of record or in the documentation submitted by the Applicant that the Applicant was recommended for or processed for a medical board by proper authority.  Further, the evidence of record does not indicate that proper authority erred by not initiating a medical board for the Applicant.  Therefore, the NDRB found the Applicant’s issue to be without merit.  Relief denied.

Issue5:  (Decisional) (Propriety)  RELIEF NOT WARRANTED.  The Applicant contends he did not receive appropriate treatment for his drug abuse.  All servicemembers separated for drug abuse are screened for drug dependency and provided the option of treatment prior to separation.  The intent of this treatment is for the benefit of the Applicant after discharge, not to rehabilitate the Applicant for continued service.  Relief denied.

Issue6:  (Decisional) (Propriety)  RELIEF NOT WARRANTED.  The Applicant contends he did not receive appropriate treatment for his PTSD.  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 record shows that the Applicant entered multiple rehabilitation programs and had psychological reviews during his service.  After a complete review of the records and his counsel’s statement to the NDRB, the NDRB determined the Applicant’s separation was warranted and was proper and equitable.  Relief denied.

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 and equitable.  Therefore, the awarded characterization of service shall remain UNDER OTHER THAN HONORABLE CONDITIONS and 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.

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 	RESTR - Restriction	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	CBW - 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