Upgrade.Vet

USMC | DRB | 2008_Marine | MD0801063

Original file (MD0801063.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20080423

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

Prior Service:
Inactive: USMCR (DEP)    20020622 - 20030710              Active:
Period of Service Under Review:
Date of Enlistment: 20030711               Period of enlistment : Years Months             Date of Discharge: 20060511
Length of Service: Yrs Mths 00 D ys     Education Level:         Age at Enlistment:       AFQT: 61
MOS: 0311        Highest Rank:                   Fitness reports:
Proficiency/Conduct marks (# of occasions):      ( )/ ( )
Awards and Decorations (per DD 214): Rifle : , Pistol : , , , , , .

Periods of UA/ CONF :

NJPs:

SCMs:    1
         20050524: Art 112a (wrongful use of a controlled substance).
         Awarded - ($823 for 1 month).

SPCMs:

CC:

6105 Counseling :
         20050524 : For wrongful use of a controlled substance.

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 Representation:              From Member of Congress:
Other Documentation (Describe)
         Certificate of completion of IMPACT Course dated 26 July 2005.
         Lance Corporal Promotion certificated dated 02 March 2004.
         Corporals Leadership Course completion diploma dated 16 December 2004.
Record of Trial by Summary Court-Martial authenticated on 24 May 2005.
2/7 CO Separation Recommendation dated 24 May 2005.
Letters of recommendation from:
         1stLt V.
         1stSgt F.
Sgt L.
Members of 3rd Platoon, Co F, 2/7
M. L., Camas High School English Teacher dated 07 June 2005
Applicant's Father dated 14 June 2005
Applicant's Mother dated 17 June 2005
R. C. M., dated 16 June 2005
B. H., Camas High School Football Coach dated 10 June 2005 (email)
N. S. H., Business Education Instructor, Camas High School dated 01 June 2005
Applicant's Aunt dated 16 June 2005
R. B., VP HR. Source Inc., dated 14 June 2005
D. S.. dated 10 June 2005
E. L. S., dated 15 June 2005
K. B., Applicant's supervisor, dated 06 November 2007
8 pages from Applicant's service medical records
Leave and Earnings Statement for the period 1-28 February 2005
MCTFS Basic Training Record printed 25 October 2004

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

Applicant’s Issues

1. Isolated incident/record of service.
2. Post Traumatic Stress Disorder (PTSD).
3. OTH is too harsh.
4. Post service conduct.

Decision

Date: 20080619 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 states 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 standa rds of discipline of the Naval S ervice. The Applicant violated the Marine Corps' drug policy while in service. The evidence of record does not demonstrate the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. An 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 of the member’s military re cord. The Applicant’s conduct was marred by illicit use of a controlled substance (cocaine). Violations of the Uniform Code of Military Justice, Article 112a (wrongful use of a controlled substance) is considered a serious offenses for which a punitive discharge and imprisonment is authorized if adjudged by a Special or General Courts Martial. Furthermore, discharge processing is mandatory for a violation of the Marine Corps' drug policy. The Board determined a n upgrade would be inappropriate.

: ( ) . The Applicant contends his problems may be attributed to PTSD . 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 evidence of record did not show the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions based on PTSD. In fact, in several of his letters of recommendation submitted by the Applicant he is commended for his post-Iraq performance both in garrison and during field exercises. His performance was of such high quality during field exercises the Battalion Commander recommended him for meritorious promotion to Corporal. Two days before his meritorious promotion a drug message came back indicating he had cocaine in his urine. The Board noted the Applicant checked several boxes on his post-deployment health assessment which led to a follow-up with competent medical authority on 07 March 2005. At that time the Applicant told the Doctor he was not having any problems and made no mention of alcohol or drug problems. He indicated to the Doctor he had just been given a squad and was looking forward to the new position. On the Applicant states in his DD Form 293 (Application for Review of Discharge), dated April 2008, he states he did not recollect using cocaine due to heavy alcohol consumption; however, the Applicant's record later includes a letter from himself to his Commanding Officer as part of the discharge package in which he indicated he did knowingly use cocaine. The Board noted the level of performance both pre and post deployment displayed by the Applicant was high and he gained the support and recognition of many in his command. However, there was not enough evidence to convince the Board PTSD was the reason for his poor judgment when it came to illegal drug use. Again, the Board determined an upgrade would be inappropriate.

: ( ) . The Applicant contends an under other than honorable conditions discharge is too harsh in light of what other service members receive. An administrative discharge is not a punishment. As discussed earlier, an under other than honorable conditions discharge is warranted when significant negative aspects of a member's conduct outweigh the positive aspects of his record. The Board found the Applicant's discharge was appropriate especially in light of his assignment as squad leader in which he was expected to set the example. In light of the positive aspects of the Marine’s service record the command did not pursue a punitive discharge; an under other than honorable conditions discharge may seem to be harsh to the Applicant however, it is within the standards of Naval discipline and most violators with cocaine use receive punitive discharges.

Issue 4: (Equity) RELIEF NOT WARRANTED. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation, which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. 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. The Applicant provided several character references as evidence of post-service accomplishments. The Applicant's efforts need to be more encompassing. For example, the Applicant could have produced evidence of a verifiable employment record, documentation of community service, evidence of a drug free existence, and certification of non-involvement with civil authorities. The Applicant should be aware completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case-by-case basis to determine if post service conduct mitigates the reason for the characterization of discharge. The Board determined an upgrade or change 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. 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 of the UCMJ, Arti cle 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, 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 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 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 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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USMC | DRB | 2008_Marine | MD0801063

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