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USMC | DRB | 2008_Marine | MD0800475
Original file (MD0800475.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080107
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN (Drug abuse)

Applicant’s Request:     Characterization change to:
                           Narrative Reason change to:

Summary of Service

Prior Service:
 Inactive: USMCR (DEP)     20040407 - 20040502              Active:         
Period of Service Under Review:
 Date of Enlistment: 20040503               Period of enlistment : Years Months             Date of Discharge: 20070801
Length of Service : Yrs Mths 29 D ys      Education Level:         Age at Enlistment:       AFQT: 68
MOS: 3043        Highest Rank:                     Fitness reports:
Proficiency/Conduct marks (# of occasions):      ( )/ ( )
 Awards and Decorations ( per DD 214): Rifle : , , (2) , ICM , , , , NMUC , LOA (2)

Periods of UA / CONF :

NJPs :    
         20070522 : Art(s) 92 (failure to obey order or regulation) and 112a (wrongful use of controlled substance) . Awarded - , , . Susp - .
        
6105 Counseling :
         20070409: For non-recommendation for promotion to Sgt because of ongoing investigation.
         20070522 : For NJP on 20070522 for violation of Articles/s 92/112 UCMJ.
         20070626: For non-recommendation for promotion to Cpl because of recent NJP.
Types of Documents Submitted

 Related to Military Service:      DD 214 and DD 215 :      Service and/or Medical Record:            Other Records:

Related to Post-Service Period:  
         Employment:                        Finances:                          Education /Training :     
         Health/Medical Records:           Substance Abuse:                           Criminal Records:       
         Family/Personal Status:                   Community Service:                References:              
        
Additional Statements From Applicant:             From Representat ion :              From Member of Congress:
Other Documentation (Describe) Letter from Applicant’s mother to Senator P atrick Leahy

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

Applicant’s Issues

 1. Benefits
2. PTSD
3. Honorable Service

Decision

 Date: 20 08 0530             Location: Washington D.C .         R epresentation : Veterans of foreign wars

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

 : either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum regarding - specifically the paragraph concerning Service Benefits.

Issue 2 : ( ). The Applicant contends his drug abuse was attributable to untreated Post Traumatic Stress Disorder (PTSD).
While he may feel this was the underlying cause of his misconduct, the evidence of record does not show the Applicant was not responsible for his conduct , that he should not be held accountable for his actions , or that his PTSD mitigated his misconduct. 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 was unable to review the applicant's service medical records ; however , the Board did note the Commanding General, Marine Corps Logistics Command's endorsement to the Applicant's administrative separation package included a statement that the Department of Veterans Affairs should grant adequate treatment for his service connected diagnosis of PTSD. The Board also noted the applicant ' s pre-service drug waivers as well as his statement to an NCIS investigator concerning his pre-service drug use. The record also documents the applicant’s non-judicial punishment for a violation of UCMJ Articles 92 and 112a , clearly demonstrating his continued use of illegal substances even while in the military . S eparation processing is mandatory for Marines who abuse illegal drugs. Violations of UCMJ Article 112a (wrongful use of a controlled substance) carry a maximum penalty of a dishonorable discharge and up to 5 years of imprisonment if adjudicated by a court martial.

Issue 3: ( ). The Applicant states his punishment was too harsh in light of his positive service to include a successful combat tour as well as purported statements from his chain of command that it would recommend a General (under honorable conditions) discharge to the Commanding General. Despite a service m ember’s prior record of service certain serious offenses though isolated, warrant separation from the naval service in order to maintain proper order and discipline. The Applicant admitted, and the record documents, his in-service use of illegal drugs which is the basis for the discharge. The separation code (entered on block 26 of the DD-214) indicates the Applicant waived h is right to an administrative board. N othing indicates the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Marine Corps . An “other than honorable conditions” characterization of service is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record . In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers the discharge proper and equitable.

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record, Discharge Process and evidence submitted by the Applicant, the Board found that






Pertinent Regulation/Law

 A. The Marine Corps Separation and Retirement Manual, (MCO P1900.16F, effective 01 Sep 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 .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation s of the UCMJ, Article s 92 and 112a .


ADDENDUM: Information for the Applicant

 Complaint Procedures : If you believe that 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 : Subsequent to a document review, former members are eligible for a personal appearance hearing, provi ded the application is received at the NDRB within 15 years from the 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. If a former member has been discharged for more than 15 years , has already been grante d a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

 Service Benefits: The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. 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.
Employmen t / Educational Opportunities : The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’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 Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Additionally, the Board 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 subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, 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 “PTSD . ” Only the Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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. Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

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 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.

Board Membership: The names and votes of the members of the 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

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