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USMC | DRB | 2008_Marine | MD0801122
Original file (MD0801122.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080421
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)    20000405 - 20000409     Active:           20000410 - 20040106

Period of Service Under Review:
 Date of Enlistment: 20040107      Age at Enlistment:
Period of Enlistment : Years Months
Date of Discharge: 20060501       H ighest Rank:
Length of Service: Year(s) Month(s) 25 D ay(s)
Education Level:         AFQT: 32
MOS: 0621/0612
Fitness Reports:

Awards and Decorations (per DD 214):     Rifle Pistol ICM (3) LoA
Periods of UA/CONF: SPCM: CC:

NJP:
- 20060110 :      Article 86 (UA), 3 specifications
         Awarded: Suspended:

- 20060406 :      Article 112a (Drug use-marijuana)
         Awarded: Suspended:

SCM:

- 20051003 :      Article 112a (Drug use-marijuana)
          Article 107 (False official statement)
          Sentence:

Retention Warning Counseling:
- 20051006 :      For failing a urinalysis screening in reference to Navy message R192255Z Apr 05.
- 20060405 :      For failing a urinalysis screening in reference to DD2624 dated 20060404 LAN S06C0694095.
- 20060501 :      For assignment of a conduct mark below a 4.0.

Administrative Corrections to the Applicant’s DD 214

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

         “CONTINUOUS HONORABLE ACTIVE SERVICE FROM
000410 UNTIL 040106”
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 Representation:     From Congress member:

Other Documentation:

Pertinent Regulation/Law

 A. The Marine Corps Separation and Retirement Manual, (MCO P1900.16F, effective 1 September 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: Articles 107 and Article 112a.


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

Applicant’s Issues

 1. Record of service.
2. Isolated incident of misconduct.
 3. Diagnosis with mental health disorders contributed to his misconduct.
4. Treatment for service-related conditions.

Decision


 Date: 2009 0223             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 he is entitled to a discharge upgrade because of his record of service which was good except for an isolated period of misconduct. 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’s record of service was marred by two retention warnings, two NJPs, and one SCM for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (UA); Article 107 (False official statement); and Article 112a (Drug use, wrongful use or possession of a controlled substance). The NDRB advises the Applicant certain serious offenses warrant separation from the service in order to maintain proper order and discipline. Violation of Article 112a is one such offense requiring mandatory separation regardless of time in service, grade or record of service. Violations of this policy result in, at a minimum, mandatory processing for an administrative separation which usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The command did not refer the Applicant for a special or general court-martial but opted instead for an administrative discharge. The NDRB determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate.

 : ( ) . The Applicant contends he is entitled to a discharge upgrade due to his diagnosis with numerous mental health disorders, including Post-Traumatic Stress Disorder (PTSD), Panic Disorder, Obsessive-Compulsive Disorder, and Bipolar Disorder. Specifically, the Applicant contends these disorders, and the prescribed medications, contributed to his misconduct. The Applicant’s medical record was not available for the NDRB to review. The Applicant did submit substantial portions of his medical record with his DD-293 Application which the NDRB did consider in       reaching a decision in this case. The available record of evidence shows the Applicant was evaluated on 24 June 2003 and given a provisional diagnosis of Anxiety Disorder, Depression, and PTSD. The available record of evidence also shows the Applicant was not prescribed medication and was not determined to be unfit for duty.

The available record does not show the Applicant was subsequently treated for any mental health issue until after his first conviction for illegal drug use on 3 October 2005. The record then shows the Applicant received treatment for mental health concerns on 13 December 2005, 19 January 2006, 26 January 2006, 1 March 2006, and 11 April 2006. On each of these occasions the Applicant was released from treatment without limitations and was specifically determined to be competent and responsible for his actions.

The NDRB determined the available record of evidence does not support the Applicant’s contention. On each occasion he received mental health care he was determined to be competent and responsible for his actions. Furthermore, the available record indicates the Applicant has a history of substance abuse which is not documented in Applicant’s service or medical record. Specifically, the Applicant’s record of medical care on 11 April 2006 shows the Applicant was not taking his prescribed medication because he “…feared they would be “addictive”. He has a hx of drug addiction in the past and is

therefore weary about medication in general.” The NDRB notes the Applicant admitted to using marijuana once prior to enlisting and denied any other illegal use of drugs. The NDRB therefore determined the evidence does not support the Applicant’s contention his drug use was the result of PTSD or any other mental health disorder, and a discharge upgrade would be inappropriate.

Issue 4: 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 , specifically the paragraph concerning , regarding .
The Applicant states he requests an upgrade to get medical benefits, but does not state the specific details of his needs. The NDRB advises the Applicant the Veteran’s Administration (VA) has announced a special access to VA enrollment available to combat veterans discharged under other than dishonorable conditions. The NDRB specifically advises the Applicant the VA determines the eligibility for enrollment independent of the Applicant’s characterization of service as determined by the Marine Corps. The Applicant is advised to contact his local VA for information. Alternately, he can call 1-877-222-8387 or visit http://www1.va.gov/opa/Is1/1.asp for more information.
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


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, 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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