Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: Garcia-Anglin, Nuchy CIV CORB, NDRB
Company: NCPB

Docket No. MD14-00428

ex-Pvt, USMC

Current Discharge and Applicant’s Request

Application Received:  20140106
Characterization of Service Received:  (corrected) 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: MISCELLANEOUS/GENERAL REASONS

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	20061115 - 20070121  COG	Active:	NONE

Pre-Service Drug Waiver:  YES

Period of Service Under Review:
Date of Current Enlistment:  20070122	Age at Enlistment:  20
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  20100422	Highest Rank:  PRIVATE FIRST CLASS
Length of Service:  03  Year(s)  03  Month(s)  01  Day(s)
Education Level:  12	AFQT:  73
MOS:  0331
Proficiency/Conduct Marks:  NFIR / NFIR

Awards and Decorations (per DD 214):	Rifle MM CAR SSDR ACM (2) GWOTSM NDSM MUC NATO

Periods of UA:  NONE

NJP:  1

- 20081011:	Article 112a (Wrongful use, possession, etc. of controlled substances, marijuana)
	Awarded: RESTR EPD RIR FOP  Suspended:  NONE

SCM:  1

- 20100129:	Article 112a (Wrongful use, possession, etc. of controlled substances, cocaine 129 ng/mL)
	Sentence: CONF 30 days (20100129-20100221, 24 days) FOP RIR E-1

SPCM:  NONE	CC:  NONE

Retention Warning Counseling:  2

- 20070228:	For your fraudulent entry into the Marine Corps Delayed Entry Program by not admitting the accurate date of your preservice drug use.  Specifically, urinalysis administered on 20070123 showed you tested positive for marijuana (THC).  You did admit to this at the “Moment of Truth” on 20070123 and were granted a CG level waiver for such.

- 20091019:	For your alcohol-related incident on 20091006.  Specifically, drunk and disorderly conduct.

Administrative Corrections to the Applicant’s DD 214

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

	Block 12c, Net Active Service This Period, should read: “03  02  08”
	Block 24, Character of Service, should read: “UNDER OTHER THAN HONORABLE CONDITIONS”

The NDRB will recommend to the Commandant of the Marine Corps, MMSB-13, 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 his discharge did not properly follow regulations concerning those with Post-Traumatic Stress Disorder (PTSD) and Traumatic Brain Injury (TBI).
2.	The Applicant contends his command’s actions during his court-martial proceedings were arbitrary and capricious and included coercing him to plead guilty to charges he maintains his innocence of.
3.	The Applicant contends his in-service conduct warrants an upgrade.
4.	The Applicant contends the death of his grandfather, his combat service, and PTSD and TBI mitigate his misconduct.

Decision

Date:  20140710	DOCUMENTARY REVIEW	Location: Washington D.C.	 Representation: Civilian Counsel

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 and TBI, 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 to Garmsir, Afghanistan from 05 March to 18 October 2008, conducting 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 Board did complete a thorough review of the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included two 6105 counseling warnings, one nonjudicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ): Article 112a (Wrongful use, possession, etc. of controlled substances, marijuana, 1 specification), and one summary court-martial (SCM) for violation of the UCMJ: Article 112a (Wrongful use, possession, etc. of controlled substances, cocaine 129 ng/mL, 1 specification).  The Applicant also had a pre-service drug waiver for using marijuana prior to entering the Marine Corps, and acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 09 November 2006.  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 exercised his rights to consult with a qualified counsel and submit a written statement but waived his right to request an administrative board.

Issue 1:  (Decisional) (Propriety)  RELIEF NOT WARRANTED.  The Applicant contends his discharge did not properly follow regulations concerning those with PTSD and TBI.  The NDRB requested all in-service records, administrative separation proceedings, and records of medical treatment, both active duty and post-service, from the Department of Veterans Affairs (VA).  The NDRB performed a comprehensive review of all material and evidence, including documentation and statements from the Applicant and his counsel, and determined his separation proceedings were proper.  Relief denied.

Issue 2:  (Decisional) (Propriety)  RELIEF NOT WARRANTED.  The Applicant contends his command’s actions during his court-martial proceedings were arbitrary and capricious and included coercing him to plead guilty to charges he maintains his innocence of.  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.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was coerced into pleading guilty to cocaine use at his Summary Court-Martial or that the proceedings surrounding his court-martial were improper or inequitable.

Regardless of the Applicant’s post-service claims of innocence, he was found guilty at a summary court-martial of cocaine usage.  The record and evidence provided by the Applicant shows that he did contract for the services of a civilian attorney based approximately 4 ½ hours away from his duty station; however, at the time of his court-martial, the Applicant willingly and knowingly elected to proceed without representation.  When subsequently notified of separations proceedings, the record shows the Applicant did consult with counsel and provided a written statement but did not request a hearing before an Administrative Separation Board.  If the Applicant felt he was coerced into making an admission of guilt at his court-martial or wished to present evidence in mitigation, it was his obligation to contest those charges at the time they were made.  During an Administrative Separation Board, he would have had the opportunity to mount a defense against the charges.  The evidence presented by the Applicant does not adequately support his contention, therefore, the NDRB relied upon the presumption of regularity in the conduct of government affairs and further determined his discharge was proper and equitable.  Relief denied.

Issue 3:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends his in-service conduct warrants an upgrade as evidenced by multiple statements from fellow Marines and his leadership, as well as his record of meritorious service.  Despite a servicemember’s prior record of service, certain serious offenses warrant separation from the Marine Corps to maintain proper order and discipline.  Violation of Article 112a is one such offense requiring mandatory processing for administrative separation regardless of grade, performance, combat deployments, character references, awards, or time in service.  This usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial.  The Applicant had already been given three chances to redeem his behavior when a waiver was granted for pre-service drug use, another waiver was issued at recruit training when he tested positive for marijuana, and he was retained in service after being found guilty of violating UCMJ Article 112 at NJP in October 2008.  Even after testing positive for cocaine in January 2010, his 
his command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge.  The NDRB found the characterization of the Applicant’s discharge was extraordinarily generous given the characterization of discharge given others in similar circumstances.  Relief denied.

Issue4:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends the death of his grandfather, his combat service, and PTSD and TBI mitigate his misconduct.  While the Applicant may feel that the death of his grandfather was a contributing factor to his misconduct, it does not mitigate his disobedience of the orders and directives that regulate good order and discipline in the Marine Corps.  The NDRB recognizes that serving in the military is challenging.  Most servicemembers, however, serve honorably and therefore earn their Honorable discharges.  In fairness to those servicemembers, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due.  There is no evidence in the record, nor did the Applicant provide any documentation, to indicate he was unable to use the numerous services available for servicemembers who undergo personal problems during their enlistments, such as the Navy Chaplain, the command Force Preservation Program, and Medical or Mental Health professionals.  To the contrary, the record of evidence clearly shows the Applicant was afforded and was using these resources.

When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline.  However, the NDRB does not consider the circumstances surrounding the Applicant’s stated condition or diagnosis to be of sufficient nature to excuse the Applicant’s misconduct.  Post-deployment medical notes indicate the Applicant returned from deployment and immediately started using marijuana and consuming large quantities of alcohol nightly.  He was immediately counseled by medical professionals, scheduled for an additional substance abuse rehabilitation program, and prescribed medications to help him with his post-deployment mental health issues.  He was further advised of the ill-effects of combining alcohol with the medications he was prescribed.  This is advice that the evidence of record and the evidence submitted by the Applicant shows he did not follow.  The Applicant’s mild TBI diagnosis by the VA is consistent with his in-service treatment notes for PTSD and TBI workup evaluations but is not substantially supported by the in-theater sections of his medical record or his post-deployment health assessment that document falls related to tripping on night patrols and a pre-service history of boxing.  No periods of in-service loss of consciousness are documented, however, three pre-service instances are.

Though the Applicant may feel that PTSD and mild TBI were the underlying cause of his misconduct, the record reflects willful misconduct that 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.  His confessed continued use of marijuana, urinalysis confirmation of cocaine usage, and alcohol abuse as documented in his medical treatment records and an administrative counseling warning were all conscious decisions to violate the tenets of honorable and faithful service.  After an exhaustive review, the NDRB determined PTSD, TBI, and the Applicant’s personal problems did not mitigate his misconduct, and his discharge was warranted, 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