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USMC | DRB | 2008_Marine | MD0800834
Original file (MD0800834.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080325
Characterization of Service Received:
Narrative Reason for Discharge: DRUG ABUSE
Authority for Discharge: MARCORSEPMAN

Applicant’s Request: Characterization change to:
                  Narrative Reason change to: Expiration of Term of Service

Summary of Service

Prior Service:
 Inactive: USMCR (DEP)     19950630 - 19950801     Active:   19870728 – 19950127 HON

Period of Service Under Review:
 Date of Enlistment: 19950802     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19990125      H ighest Rank:
Length of Service : Y ea rs M on ths 24 D a ys
Education Level:        AFQT: 53
MOS: 2532
Proficiency/Conduct M arks (# of occasions): /   Fitness Reports:

Awards and Decorations ( per DD 214):      w/2 Stars KLM AGCM w/1 Star w/1 Star ASR AOSR w/2 Stars MM KLM (K) AAM w/1 Star

Period of CONF : 19980602-19980626 (24 DAYS)

NJP:
- 19980211 :      Article 92 ( Failure to obey an order or regulation)
         Article 117 (Provoking speech )
                   Awarded: Suspended:
SCM:
- 19981014 :      Article 91 (Disrespectful in language)
         Article 109 (Damage government property)
         Article 111 ( Drunken o p eration of a vehicle - 2 specifications )
         Article 128 (Assault)
                   Sentence: CONF 12 DAYS RESTR
SPCM:
- 19980602 :      Article 112a (Wrongfully use marijuana)
                  Sentence: RIR FOP CONF FOR 30 DAYS

CC:

Retention Warning Counseling:
- 19980724 :       For poor judgment in decision concerning the use of illegal drugs (marijuana)
- 19990107:      For violation of Article 128 (Assault) and Article 111 (Drunken operation of a vehicle)


NDRB Documentary Review Conducted (date):        20010329
NDRB Documentary Review Docket Number:   MD00-01039
NDRB Documentary Review Findings:                 NO CHANGE WARRANTED


Administrative Corrections to the Applicant’s DD 214

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

         “ MISCONDUCT (DRUG ABUSE) ”

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:           Substance Abuse:                           Criminal Records:       
         Family/Personal Status:                   Community Service:                References:              
Additional Statements :
From Applicant:       From Representat ion :   From Congress member :

Other Documentation : VA disability, IRS performance awards, Resume of employment and school




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

Applicant’s Issues

1. Applicant states his misconduct was due to PTSD.      
2. Applicant seeks upgrade due to p ost-service conduct   

Decision

 Date: 2009 0909 Location: Washington D.C. R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall MISCONDUCT (DRUG ABUSE) .
Discussion

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 6105 counseling warnings, nonjudicial punishment (NJP) , s ummary c ourt- m artial (SCM) and one s pecial c ourt- m artial (SPCM) for o f the Uniform Code of Mil itary Justice (UCMJ): Article 91 (Insubordinate conduct: disrespectful in language), Article 92 (Failure to obey an order or regulation: disobeyed SECNAVINST 5300.26B, to wit: c reated an intimidating, hostile, or offensive working environment toward LCPL R _), Article 109 (Damage to government property), Article 111 (Drunken operation of a vehicle: two specifications), Article 112a (Drug abuse, wrongful use of a controlled substance: marijuana), Article 117 (Wrongful use of provoking words) and Article 128 (Assault on another Marine). The Applicant did not have a pre-service drug waiver for using drugs prior t o entering the Marine Corps, but did acknowledge complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 29 June 1995. Based on the offense(s) committed, processing for administrative sepa ration was mandatory. When processed for a dministrative s eparation, the Applicant refused to sign the notification documents on whether to elect or waive rights to consult with qualified counsel, submit a written statement for consideration by the separating authority, and request an a dministrative b oard.

: (Decisional) ( ) . The Applicant contends his misconduct in the Marine Corps was due to undiagnosed Post Traumatic Stress Disorder (PTSD) that he attained eight years prior while serving i n the Army during combat operations in Kuwait (Desert Storm). The NDRB noted that the U.S. Department of Veteran s Affairs (VA) evaluated and diagnosed the Applicant with a mild case of PTSD ( 30 percent disability ) . However, while the Applicant may feel his PTSD was the underlying cause of his misconduct when he later served in the Marine Corps , the record of evidence does not demonstrate the Applicant was not responsible for his misconduct or should not be held accountable for his actions. Despite a Marine’s prior record of se rvice, to include his performance in the Army which merited an Honorable discharge , certain serious offenses warrant separation from the n aval service in order to maintain good order and discipline. An “Under Other Than Honorable C onditions ” discharge 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. The NDRB opined that the Applicant, with or without the “mild” post-service PTSD diagnosis , was still responsible for his actions and thus determined the discharge was proper. Relief denied.

Issue 2: (Decisional) ( ) . The Applicant contends his post-service conduct is worthy of consideration for an upgrade. The Applicant presented documentation that he completed an As sociates degree in Information T echnology (IT) at ITT Technical Institute, which has permitted him to secure employment as an IT technician at several jobs .
Currently, the Applicant has been employed for the last five years as an IT Specialist for the Department of Treasury . In addition, the Applicant is married with two children. The NDRB congratulates the Applicant on his personal and professional achievements; however, the Board determined his post-service efforts needed to be more encompassing. The Applicant could have produced additional evidence as stated in documents previously provided to the Applicant and in the addendum with the full understanding completion of these items does not guarantee an upgrade. Reli e f denied.




Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain (DRUG ABUSE) . The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews .


Pertinent Regulation/Law

 A. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 January 1997 until 31 August 2001.

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 Association of Service Disable 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 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 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

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