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USMC | DRB | 2008_Marine | MD0800806
Original file (MD0800806.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080204
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request: Characterization change to:
                  Narrative Reason change to: BEST INTEREST OF SERVICE

Summary of Service

Prior Service:
 Inactive: USMCR (DEP) 20050628 - 20050710                Active:

Period of Service Under Review:
 Date of Enlistment: 20050711      Period of Enlistment : Years Months     Date of Discharge: 20070828
Length of Service: Years Months 18 D ays        Education Level:         Age at Enlistment:
AFQT: 97          MOS: 0351         Highest Rank:    Fitness Reports:
Proficiency/Conduct Marks (# of occasions):      ( ) / ( )
Awards and Decorations (per DD 214): Rifle ICM CoC

 Periods of UA: 20070321-20070326 (6 days)
20070619-20070625 (7 days)

NJP: SCM: SPCM: CC: 6105 Counseling:

                                             Types of Documents Submitted/reviewed

Related to Military Service:      DD 214:          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 Representation:              From Member of Congress:

Other Documentation (Describe):

         - List of resources
         - Article on Post Traumatic Stress Disorder in the Military Veteran
         - Article on Post Traumatic Stress Has Trebled Among Combat-exposed Military Personnel
         - Article on PTSD in Iraq Veterans: Implications for Primary Care
         - Article on Substance Abuse in the Deployment Environment
         - Article on Returning from the War Zone
         - Article on GAO: Few Troops Are Treated fro Disorder
         - Part of SECNAVINST 5420.174D
         - Part of SECNAVINST 5300.28d
         - Marine Corps Separation and Retirement Manual, part of 6103, 6104 and part of 6105
         - Army Discharge Review Board - case report and directive
         - Three Navy Discharge Review Board decision from Armed Forces Reading Room
         - Article on PTSD: The War Within

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

Applicant’s Issues

 1. Improper use of self-referral to substance abuse program for punitive action and discharge characterization.
2. Marine Corps did not make reasonable effort to treat PTSD.
3. Post Traumatic Stress Disorder (PTSD) led to abuse of drugs.
4. Record of service was otherwise honorable.
5. Abuse of authority by the Staff Judge Advocate.

Decision

 Date: 20081023      Location: Washington D.C. R epresentation : civilian counsel
By a vote of the Characterization shall .
By a vote of the Narrative Reason shall MISCONDUCT .
Discussion

 : ( ) . The Applicant contends his command improperly used his admission of drug-use for self-referral to a drug-treatment program as the basis for punitive action and for determining the basis for the characterization of his service upon discharge. 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. The Applicant cites Paragraph 6, Enclosure 2, of SecNavInst 5300.28D as the basis for this contention. This paragraph is cited below:

 All Navy and Marine Corps active duty and reserve personnel who self-refer for drug abuse to qualified representatives shall be screened for drug dependency at a medical facility. Those who are officially confirmed as valid self-referrals shall be exempt from any disciplinary action, processed for administrative separation, and offered treatment as outlined in reference (a)…
The record of evidence shows the Applicant was in a state of UA on 7 February 2007. The record also reflects the Applicant admitted illegal drug use was the cause of his UA status to Staff Sergeant Hanson, who had called the Applicant to determine where the Applicant was and why he missed the unit formation on the morning of 7 February 2007. The Applicant admitted to using cocaine and escasty to Staff Sergeant Hanson. The paragraph cited above clearly states the self-referral for drug-abuse must be to a “qualified representative.” Staff Sergeant Hanson’s position is not named in the record, so the NDRB assumes the Staff Sergeant was the Applicant’s Platoon Sergeant, or he was acting in a similar capacity. As such, he is not a “qualified representative” in the context of the paragraph above; he is a direct representative of the member’s chain of command.

The NDRB also considered Paragraph 6210.5.c of MCO P1900.16F, cited below;

 c. Self-referral for drug use constitutes confirmation of illegal drug abuse and requires a Marine to be processed for administrative separation. The Voluntary Drug Exemption Program is no longer applicable. However, a Marine's voluntary submission to a DoD treatment and rehabilitation program, and evidence voluntarily disclosed by the Marine as part of the course of treatment in such a program may not be used against the Marine on the issue of characterization of service. This limitation does not apply to:

(1) The introduction of evidence for the purpose of impeachment or rebuttal in any proceeding in which evidence of drug abuse has been first introduced by the Marine; or

(2) The taking of action based on independently derived evidence, including evidence of continued drug abuse after initial entry into a treatment and rehabilitation program.

The NDRB determined the Applicant made a voluntary confession to his chain of command of having wrongfully used cocaine and ecstasy. As such, the confession by itself constitutes confirmation of illegal drug abuse and requires processing for administrative separation. The Applicant’s command was not prohibited from using this evidence of illegal drug use for
punishment or for characterizing his service upon administrative separation. The NDRB further notes the urinalysis ordered upon the Applicant’s return from his UA is admissible as evidence under the Military Rules of Evidence, Rule 313, Inspections and Inventories in the Armed Forces. The NDRB determined there was not an improper use of his admission of illegal drug use or an improper application of a urinalysis upon his return from UA. The Applicant’s command had the admissible evidence of illegal drug use required to try the Applicant by Court-Martial, so accepting the Applicant’s request for separation in lieu of trial was proper. Additionally, it is noted the Applicant requested the separation in lieu of trial based on the evidence against him. The Applicant always had the option at any step of the discharge process to forego the administrative discharge procedure and request a trial by court-martial. Based on the aforementioned, the Board determined an upgrade would be inappropriate.

 : ( ) . The Applicant contends his discharge should be upgraded due to the Marine Corp’s failure to adequately treat his PTSD. The record of evidence indicates the Applicant returned from Iraq on or about 3 February 2007. In his statement to the Commander, 2 nd Marine Division, the Applicant states he used cocaine and ecstasy on the weekend of 3-4 February 2007, and admitted his illegal drug use to SSgt Hanson on 7 February 2007.

The NDRB rejects the contention the Marine Corps did not make a reasonable effort to treat his PTSD based on the short time available between the Applicant’s return from deployment and the beginning of his drug use. The Applicant’s record indicates he returned from Iraq around 3 February 2007 and began to use drugs within basically 24 hours. He was diagnosed with alcohol and drug dependency as of 15 February 2007; dependency would not have occurred based on this short time frame which indicates a previous history and relapse. The first mention in the Applicant’s record of PTSD was noted on 26 March 2007. The NDRB notes the Applicant did receive significant treatment for both PTSD and his substance addictions as evidenced by the 230 pages of mental health records submitted by the Applicant with his DD-293 application. There is no evidence in the record to indicate upon returning from deployment and placed in an authorized liberty status the Applicant either raised the issue of being in a state of emotional or psychological duress as a result of his Iraq experiences, or the fact that during his authorized liberty he reported to a military medical facility for treatment concerning PTSD related issues due to his experiences while in Iraq. However, the evidence of record does demonstrate the Applicant had the presence of mind to quickly seek out and consume two highly sought after illegal drugs, cocaine and ecstasy. The Board determined this issue was without merit or substance and an upgrade founded on this issue would be inappropriate.

: ( ) . The Applicant contends his abuse of illegal drugs was the result of his PTSD contracted in combat in Iraq. The record of evidence clearly documents the Applicant’s diagnosis with PTSD. However, the record of evidence does not support the contention the Applicant’s drug abuse is the result of his PTSD or that because of PTSD he was not responsible for his actions of misconduct. On 28 June 2005, prior to enlisting, the Applicant certified his history of drug use consisted only of the use of marijuana on 2 or 3 occasions. However, in his statement to the Commander, 2 nd Marine Division, dated 28 June 2007, the Applicant admitted that he “had a significant drug addiction problem while I was in college in Miami, Florida. After my return from Iraq, my experiences there as well as my old demons began to plague me once again.” The NDRB can only conclude the Applicant knowingly withheld information concerning his prior drug addictions during his enlistment process, which clearly shows his use of addictive drugs predates his enlistment and extended beyond just 2 or 3 uses of marijuana. For the edification of the Applicant, by failing to disclose information such as a “significant drug addiction problem” and attesting to only using marijuana 2 or 3 times could be considered a violation of the Uniform Code of Military Justice (UCMJ): Article 83 (Fraudulent enlistment) or Article 107 (Making a false official statement). The command did not pursue this.

The NDRB reviewed and discussed this issue thoroughly during a lengthy deliberation period. The Board considered the Applicant’s PTSD as a mitigating factor to his misconduct which clearly centered around the use of illegal drugs. Notwithstanding the UA and drug use, it was noted there were no other incidents of UCMJ violations (e.g., Assault, larceny, disrespect to SNCO or officer, etc.). However, in light of the Applicant’s prior history of drug use and a significant drug addiction problem, the Board determined the applicant’s claim that PTSD caused his illegal drug use was without merit. The Applicant was a risk of a substance abuse relapse due to a strong prior history of drug abuse and the Board was not convinced PTSD was the cause of the relapse. There was nothing found in the record indicating he was not responsible for his actions or that he was medically found to be not accountable for using cocaine and ecstasy. The record of evidence reflects the Applicant was placed on authorized liberty, immediately sought illegal drugs, subsequently entered into an unauthorized absence status


and was called to task for these actions. The Applicant had sufficient opportunity to discuss this with both his military attorney and medical personnel. The Board determined had PTSD been a key player in this situation to the extent it was the main driving force which propelled the Applicant to seek out illegal drugs it would have been discovered and noted by competent medical and legal authorities initially working this case; especially as PTSD DoD-wide had been openly discussed and documented by the time of the offenses. The Board determined an upgrade would be inappropriate.

: ( ) . The Applicant contends he is entitled to an upgrade in his discharge since his record of service is otherwise clear of misconduct. Again, for the edification of the Applicant, despite a Marine’s prior record of service certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. While the NDRB acknowledges the fact the Applicant was subject to a tour of combat duty in Iraq and performed well, the facts stand that immediately upon return to the United States he entered into illegal drug use by consuming
two very popular drugs within the drug community, cocaine and ecstasy. This represents a clear violation of the UCMJ, Article 112a (Drug use). Violations of this policy result in mandatory processing for administrative separation which usually results in
an unfavorable characterization of discharge. It also could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentence by a special or general court martial. However, the Applicant elected to be administratively separated in lieu of a court martial. The Applicant’s full record of service would have been reviewed at that time against his misconduct prior to a determination being made as to his characterization and narrative reason for separation; the Applicant presented no evidence to the contrary that this process was violated or circumvented. The NDRB determined an upgrade would be inappropriate.

: ( ) . The Applicant contends the Staff Judge Advocate for the 2 nd Marine Division potentially abused his authority by rendering his opinion that the proceedings of this discharge were sufficient in law and fact. The Applicant makes this contention based on an opinion by the trial counsel that the evidence may not be sufficient since it
was thought to be derived from a self-admission to a drug treatment program. As discussed under Issue 1, the NDRB determined the Applicant’s confession was not protected by SecNavInst 5300.28D, and was therefore admissible. The Board determined an upgrade would be inappropriate.

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

Pertinent Regulation/Law

 A. Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications .

C. 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 .

D. 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 of the UCMJ, Article 112a.

 E. Secretary of the Navy Instruction 5300.28D of 5 December 2005, Military Substance Abuse Prevention and Control, Para 6 of Encl (2), Voluntary Self-Referral for Rehabilitation for Drug Abuse.

 F. Paragraph 6210.5 , Drug Abuse , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present.
G. Rule 313, Inspections and inventories in the armed forces , Manual for Courts-Martial, Part III Military Rules of Evidence.

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, provided 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 granted 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.
Employment/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 or is referred to a court-martial 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 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 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 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 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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