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USMC | DRB | 2008_Marine | MD0800944
Original file (MD0800944.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080401
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

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

Summary of Service

 Period of Service Under Review:
 Date of Enlistment: 20000606      Period of enlistment : 8 Years            Date of Discharge: 20061201
         Active Service : Yrs Mths 20 D ys        
         Inactive Service: Yrs Mths 10 D ys     
Education Level:         Age at Enlistment:       AFQT: 50
MOS: 3531        Highest Rank:                     Fitness reports:
Proficiency/Conduct marks (# of occasions):      ( )/ ( )
 Awards and Decorations ( per DD 214): Rifle : , Pistol : , ,

Periods of UA / CONF :

NJPs :    
         20060122 : Art . Awarded - E-3, $394 for 2 months .
Susp - .

S CMs :   

SPCMs:  

CC:      

6105 Counseling :
         20060122 : For poor judgment and conduct unbecoming a Marine.
         20060122: For illegal drug involvement (marijuana).
Types of Documents Submitted

 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 Representat ion :              From Member of Congress:
Other Documentation (Describe)

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

Applicant’s Issues

 1. P ost Traumatic S tress D isorder (PTSD).
2. Record of s ervice .
3. CO recommended an Honorable discharge.

Decision


 Date: 20 08 0 606             Location: Washington D.C .         R epresentation :

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

 : ( ) . The Applicant contends his problems may be attributed to PTSD . During Board reviews t he government is presumed to conduct its affairs with regularity unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. While he may feel this was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The Board noted in the CO, K Btry, 2/14 , 4 th MarDiv’s Recommendation for Administrative Discharge of t he Applicant's possible diagnosis of PTSD as well as the Applicant's personal statement regarding his diagnosis. However , the Board also noted the A pplicant had a pre-service drug waiver for using marijuana at least 20 times . The evidence of record did not show the Applicant was either not responsible for his conduct or should not be held accountable for his actions . Nor was there anything indicating PTSD was the driving factor behind the Applicant’s drug use; which is supported by extensive pre-service use of marijuana . The Applicant is directed to the Addendum , , regarding .

: ( ) . The Applicant implies his record of service mitigates his misconduct. The Board 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. T he record clearly demonstrates the Applicant violated the U niform C ode of M ilitary J ustice (UCMJ), Article 112a (wrongful use of a controlled substance). When a Marine’s service has been honest and faithful, it is appropriate to characterize such ser vice under honorable conditions; however a n under other than honorable conditions discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects. Violations of UCMJ Article 112a are considered serious offenses for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial. The Board determined a n upgrade to honorable would be inappropriate.

: ( ) . The applicant contends he would have challenged his discharge and consulted with counsel had his CO not recommended an Honorable discharge. The Board reviewed the entire separation package and noted on 22 February 2006 the Applicant, in his Acknowledgement of Rights to be Exercised or Waived in Connection with Discharge Proceedings, chose not to request a hearing before an Administrative Separation Board or to consult with counsel even though he was advised under paragraph (2) that the least favorable characterization of service he could receive was an Other Than Honorable. T he Commanding Officer of K Battery didn’t provide his comments recommend ing an Honorable discharge until 11 Apr il 2006 ; approximately 2-months after the Applicant waived his rights . The Board found the Applicant was made aware of the least favorable characterization of service he could receive and knowingly and intelligently chose not to consult with counsel and waived his right to appear before an Administrative Separation Board. The Applicant should also be aware the recommendation by the CO of K Battery was only a recommendation and the CG, HQ 4 th MarDiv reserves the right to adjudicate the discharge as he deemed appropriate.

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. 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 UCMJ, Article 112a (wrongful use of a controlled substance) .


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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