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

Docket No. MD13-00077

ex-PFC, USMC

Current Discharge and Applicant’s Request

Application Received:  20121010
Characterization of Service Received:  (per DD 214) GENERAL (UNDER HONORABLE CONDITIONS)
Narrative Reason for Discharge:  (corrected) 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)	20080701 - 20080914  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  20080915	Age at Enlistment:  21
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  20120608	Highest Rank:  LANCE CORPORAL
Length of Service:  03  Year(s)  08  Month(s)  24  Day(s)
Education Level:  GED	AFQT:  71
MOS:  0621
Proficiency/Conduct Marks (# of occasions):  3.7 (NFIR) / 3.8 (NFIR)	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	Rifle MM ACM CAR GWOTSM NDSM NATO MUC NUC SSDR

Periods of UA/CONF:  NONE

NJP:  NONE	SPCM:  NONE	CC:  NONE	Retention Warning Counseling:  NONE

SCM:  1

- 20110706:	Article 92 (Failure to obey order or regulation, 2 specifications)
	Specification 1: Wrongfully possessing Spice
	Specification 2: Wrongfully possessing drug paraphernalia
	Sentence: CONF 20 days (pretrial confinement:  20110706 - 20110710, 5 days) RESTR RIR E-1

Administrative Corrections to the Applicant’s DD 214

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

	Block 28, Narrative Reason for Separation, should read: “MISCONDUCT”

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.	The Applicant seeks education and unemployment benefits.
2.	The Applicant seeks employment with the Federal government.
3.	The Applicant contends he thought Spice was legal to have. 
4.	The Applicant contends he consumed alcohol to self-medicate for his Post-Traumatic Stress Disorder (PTSD), and a friend gave him the Spice while he was drinking.
5.	The Applicant contends his sergeants acted improperly when he asked for help.
6.	The Applicant contends he took a plea bargain, because he felt threatened.

Decision

Date:  20130326	DOCUMENTARY REVIEW	Location: Washington D.C.	 Representation: Disabled American Veterans

By a vote of 5-0 the Characterization shall remain GENERAL (UNDER 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 NDRB reviewed the Applicant’s statement; the Applicant stated that he was diagnosed with PTSD related to his combat service in Afghanistan.  The Applicant’s service record documents completion of a deployment in the Helmand Province of Afghanistan from May 2010 to December 2010 in combat operations in support of Operation ENDURING 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’s record of service included one summary court-martial (SCM) for violation of the UCMJ: Article 92 (Failure to obey order or regulation, 2 specifications: Specification 1: Wrongfully possessing Spice and Specification 2: Wrongfully possessing drug paraphernalia).  The Applicant also had a pre-service drug waiver for using marijuana two times prior to entering the Marine Corps, and acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 26 June 2008.  Based on the drug policy violation, processing for administrative separation is mandatory.  The Applicant signed a pre-trial agreement to plead guilty at non-judicial punishment or Summary Court-Martial for the Article 92 violations, provided the Convening Authority withdraw the charges and specifications against him pending at a Special Court-Martial.  As a further condition of the pre-trial agreement, the Applicant agreed to waive his administrative separation board if he would receive a characterization of service no worse than a General (Under Honorable Conditions).  When notified of administrative separation processing using the administrative board procedure, the Applicant exercised his right to consult with a qualified counsel but waived his right to submit a written statement and, per the pretrial agreement, his right to request an administrative separation board. 

Issue 1:  (Nondecisional)  The Applicant seeks education and unemployment benefits.  The U.S. Department of Veterans Affairs (VA) and individual states determine 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.

Issue 2:  (Nondecisional)  The Applicant seeks employment with the Federal government.  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.

Issue 3:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends he thought Spice was legal to have.  The Applicant pled guilty at a Summary Court-Martial for two violations of Article 92 for wrongfully possessing Spice and drug paraphernalia.  In addition, the Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 26 June 2008.  Smoking any substance with the intention of getting high is a violation of SECNAVINST 5300.28D (Military Substance Abuse Prevention and Control), which requires, at a minimum, mandatory processing for an administrative separation.  The Applicant was aware that intentionally getting high was prohibited.  Additionally, if the Applicant felt he was mistakenly charged with a crime, it was his obligation to contest those charges at the time they were made vice pleading guilty.  During a trial or administrative separation board, he would have had the opportunity to mount a defense against the charges.  Relief denied.

Issue4:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends he consumed alcohol to self-medicate for his PTSD, and a friend gave him the Spice while he was drinking.  In determining discharge characterization of service, the Applicant’s conduct forms the primary basis for consideration.  The Applicant’s in-service conduct included a Summary Court-Martial for violating Article 92, which was a willful failure to meet the requirements of his contract honorably.  The Applicant’s official military service record diagnosis of PTSD coupled with additional post-service documentation provided by the Applicant supports his contention that he suffered from PTSD in service.  However, during the separation process, the medical officer determined the Applicant did not have a medical condition that may have had a material impact on his behavior.  A psychiatric review suggests that PTSD may have been a contributing factor, however, the psychiatrist could not determine to what extent, if any, PTSD contributed to the respondent’s Spice possession.  The Separation Authority determined the Applicant’s PTSD was not sufficiently mitigating to excuse his Spice possession.  The record clearly shows that proper consideration of the Applicant’s PTSD was given in the course of deciding whether to accept the Applicant’s pre-trial agreement, provide mitigation in the Summary Court-Martial sentencing, and determining the Applicant’s characterization of service.  Marines caught using Spice and possessing drug paraphernalia typically receive an Under Other Than Honorable Conditions characterization.  The Applicant’s PTSD was considered when discharging him with a General (Under Honorable Conditions) characterization so that he could access VA health services.  The NDRB determined that PTSD mitigated his misconduct, but since mitigation had already been provided during his separation proceedings, further relief based on PTSD was not warranted.  Relief denied.

Issue5:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends his sergeants acted improperly when he asked for help.  The record contained no evidence of any wrongdoing by the Applicant’s sergeants or anyone else in the chain of command.  The NDRB presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary.  The NDRB determined the Applicant’s discharge was proper and equitable.  Relief denied.

Issue6:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends he took a plea bargain, because he felt threatened.  The Applicant signed a pre-trial agreement in which he stated he was satisfied with the advice from his defense counsel in all aspects.  If the Applicant felt he was coerced into taking the plea agreement, it was his obligation to bring forth this allegation at the time or withdraw his guilty plea prior to his Summary Court-Martial.  The Applicant submitted no evidence to support his contention, therefore, the NDRB relied upon the presumption of regularity in the conduct of government affairs.  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 GENERAL (UNDER 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.

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 	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