Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: janet.goode
Company: NCPB

Docket No. MD14-00994

ex-Pvt, USMC

Current Discharge and Applicant’s Request

Application Received:  20140416
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
	Narrative Reason change to: NONE REQUESTED

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	20061102 - 20071107  COG	Active:	NONE

Pre-Service Drug Waiver:  NO

Period of Service Under Review:
Date of Current Enlistment:  20070108	Age at Enlistment:  20
Period of Enlistment:  5 Years  0 Months
Date of Discharge:  20120118	Highest Rank:  SERGEANT
Length of Service:  05  Year(s)  00  Month(s)  10  Day(s)
Education Level:  12	AFQT:  80
MOS:  0627
Fitness Reports:  AVAILABLE

Awards and Decorations (per DD 214):	Rifle SS GCM ICM SSDR GWOTSM NDSM CC

NJP:  1

- 20101202:	Article 92 (Failure to obey a lawful order or regulation) 2 specifications
	Specification 1: Left his post on 20101112
	Specification 2: Wilfully failed to stand his post on 20101112
	Awarded: RIR RESTR EPD FOP  Suspended:  RESTR EPD FOP

SCM:  1

- 20110913:	Article 86 (Absent without leave, 0730 on 20110812, you were not at your appointed place of duty)
	Article 92 (Failure to obey a lawful order or regulation, operated a POV with expired registration) 
	Article 112a (Wrongful use, possession, etc. of controlled substances, THC 72ng/ml and Oxymorphone 180ng/ml)
	Sentence: FOP CONF 30 days  (20110913-20111006, 24 days)  RIR E-1

SPCM:  NONE

Retention Warning Counseling:  2

- 20101202:	For violation of Article 92

- 20110714:	For violation of Article 86

Administrative Corrections to the Applicant’s DD 214

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 deserves VA benefits.
2.	The Applicant contends he deserves back pay.
3.	The Applicant contends he was refused PTSD treatment.
4.	The Applicant contends his in-service conduct warrants an upgrade.
5.	The Applicant contends wrong doing by the Acting Battalion Commander.
6.	The Applicant contends his name was slandered throughout the battalion.
7.	The Applicant contends he was coerced into making a false statement.
8.	The Applicant contends a sergeant assaulted his family.
9.	The Applicant contends he was discriminated against due to his Christian beliefs.
10.	The Applicant contends others received less harsh punishment.
11.	The Applicant contends his depression mitigates his misconduct.
12.	The Applicant contends he served a full four year term but extended when he switched MOSs.
13.	The Applicant contends his duty was illegal since it was for a consecutive 48 hour period.

Decision

Date:  20141106	DOCUMENTARY REVIEW	Location: Washington D.C.	 Representation: NONE

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 or 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 implied he has PTSD related to his combat service in Iraq and Afghanistan.  However, the NDRB could not confirm that the Applicant served in Afghanistan .  The Applicant’s service record documents completion of a deployment in the Al-Anbar Province of Iraq from January to October 2009, conducting combat service support operations 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’s record of service included two 6105 counseling warnings, one nonjudicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey a lawful order or regulation, 2 specifications); and one summary court-martial (SCM) for violations of the UCMJ: Article 86 (Absent without leave), Article 92 (Failure to obey a lawful order or regulation, operated a POV with expired registration), and Article 112a (Wrongful use, possession, etc. of controlled substances, THC 72ng/ml and Oxymorphone 180ng/ml).  The Applicant did not have a pre-service drug waiver for using illicit drugs prior to entering the Marine Corps, and acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 24 October 2006.  Based on the Article 112a violation, processing for administrative separation is mandatory.   Per the Applicant’s pre-trial agreement, the Applicant waived his rights to consult with a qualified counsel, submit a written statement, and request an administrative board.  The Applicant was notified of separation proceedings for Pattern of Misconduct and Drug Abuse.

Issue 1:  (Nondecisional)  The Applicant contends he deserves VA 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.

Issue 2:  (Nondecisional)  The Applicant contends he deserves back pay.  The NDRB has no authority to authorize back pay.  Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.  The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490.  Their website is http://www.donhq.navy.mil/bcnr/bcnr.htm.

Issue 3:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends he was refused PTSD treatment.  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 did not find any reference to a medical diagnosis of PTSD or TBI in the Applicant’s service record to support his claim let alone a refusal for treatment, and the Applicant did not provide any documentary evidence of a medical diagnosis by competent medical authorities to support his claim.  However, the Applicant was screened by competent medical authority on 19 October 2011 for any diagnosis or symptoms consistent with PTSD or TBI; this screening showed no evidence of PTSD or TBI diagnosis or symptoms.  Though the Applicant may feel that PTSD was 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.  Wrongful use of marijuana and Oxymorphone, failure to obey orders and regulations, and absence without leave were all conscious decisions to violate the tenants of honorable and faithful service.  After an exhaustive review, the NDRB determined that PTSD did not mitigate the Applicant’s misconduct.  Relief denied.

However, the Applicant should be aware that the VA has announced special VA enrollment access for PTSD and mental health treatment to combat veterans discharged under other than dishonorable conditions.  Effective Jan. 28, 2008, combat veterans discharged from active duty on or after Jan. 28, 2003 are eligible for combat veteran enhanced eligibility and enrollment placement into Priority Group 6 (unless eligible for higher enrollment Priority Group placement) for 5 years post discharge.  Additionally, the VA determines the eligibility for enrollment in its programs - independent of the Applicant’s characterization of service as determined by the Marine Corps.  The Applicant, as a combat veteran, is encouraged to contact his local VA affairs representative for more information and may request a review of service and determination of benefits from the VA.  Alternately, he may call 1-877-222-8387 or visit the following website for more information: http://www4.va.gov/healtheligibility/Library/pubs/CombatVet/CombatVet.pdf.

Issue4:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends his in-service conduct warrants an upgrade.  Based on the Applicant’s record of service, the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service, and the awarded characterization of service was warranted.  Relief denied.

Issues 5-9:  (Decisional) (Propriety)  RELIEF NOT WARRANTED.  The Applicant contends wrong doing by the Acting Battalion Commander, his name was slandered throughout the battalion, he was coerced into making a false statement, a sergeant assaulted his family, and he was discriminated against due to his Christian beliefs.  The NDRB is not an investigative body, and allegations of wrongdoing should be made to an appropriate law enforcement organization or the Inspector General’s Office.  The record contained no evidence of any wrongdoing by the Applicant’s commanding officer or anyone else.  The NDRB presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary.  The NDRB discerned no impropriety or inequity and determined the Applicant’s discharge was proper and equitable.  Relief denied.

Issue10:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends others received less harsh punishment.  The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service.  Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Marine Corps.  A preponderance of the evidence reviewed supports the conclusion that the Applicant committed drug abuse and had a pattern of misconduct.  The NDRB determined that his separation from the Marine Corps was warranted and that an Under Other Than Honorable Conditions discharge was appropriate.  Relief denied.

Issue11:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends his depression mitigates his misconduct.  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.  Relief denied.

Issue12:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends he served a full four year term but extended when he switched MOSs.  Characterization of the current enlistment or period of service is determined by conduct, actions, or performance during that enlistment or service plus any extensions prescribed by law or regulations or effected with the consent of the member.  Relief denied.

Issue13:  (Decisional) (Propriety)  RELIEF NOT WARRANTED.  The Applicant contends his duty was illegal since it was for a consecutive 48 hour period.  The record of evidence clearly shows the Applicant waived his rights to trial by court-martial and an administrative separation board.  If the Applicant felt he was mistakenly charged with a crime or that it was not a lawful order, it was his obligation to contest those charges at the time they were made.  During a trial or administrative separation board, he would have had the opportunity to mount a defense against the charges.  The Applicant submitted no evidence to support his contention; therefore, the NDRB must rely 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 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