Search Decisions

Decision Text

USMC | DRB | 2008_Marine | MD0801277
Original file (MD0801277.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080520
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)     20020806 - 20030713     Active:  

Period of Service Under Review:
Date of Enlistment: 20030714     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20051209      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 26 D a y ( s )
Education Level:        AFQT: 45
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle PH GWOTSM

Periods of UA / CONF : NJP: SPCM: CC:

SCM:

- 20050713 : Art icle 112a ( Drug use, w rongfully used marijuana) , 2 specifications
Sentence : (20050713-20050805 ( 24 days)

Retention Warning Counseling :

- 20050511 :       For my illegal drug-related incident on 20050401 and 20050415. Specifically, marijuana usage identified through urinalysis and confirmed by NAVDRUGLAB message dated 20050418 and 20050429.

- 20050511:      For testing positive on a urinalysis test for a controlled substance.
-20051114:       For failure to obey order or regulation and assault.

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 :



Related to Post-Service Period (cont):

                  From Applicant:         From Representat ion :   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 : Article 112a (Drug use).



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

Applicant’s Issues

 1. Veterans’ benefits.
2. Record of service.
3. Isolated incident of misconduct.
 4. Diagnosis with P ost T raumatic S tress D isorder (PTSD) .

Decision

 Date: 20 0 9 0212            Location: Washington D.C .         R epresentation :

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

 : 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 contends he is entitled to a discharge upgrade due to his isolated misconduct in an otherwise worthy record of service including combat service where he earn ed a Purple Heart : He continu ed to serve after receiving his SCM. 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 three retention warnings and one SCM for violations of the Uniform Code of Military Justice (UCMJ): Article 112a ( Drug use, w rongful 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 previous 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 record of evidence shows the Applicant failed a urinalysis with THC detected at a level of 104 ng/mL given on 1 April 2005 before going on pre-deployment leave. The Applicant failed another urinalysis on 15 April 2005 given upon his return from leave with THC detected at a level of 176 ng/mL . For the edification of the Applicant, the threshold for a positive indication of marijuana is 15 ng/m L . While the NDRB is aware of the Applicant’s combat service and Purple Heart award, the repeated use of illegal drugs is against the core values and ethos of the Marine Corps. The Applicant failed to provide sufficient documentation or evidence in support of his request and the NDRB determined the awarded discharge characterization was appropriate; an upgrade would be inappropriate.
: ( ) . The Applicant contends he is entitled to a discharge upgrade due to his diagnosis with PTSD prior to being separated from the Marine Corps. The available record of evidence does not support this contention. T he record shows the Applicant completed a DD - 2807 Report of Medical History at some point prior to his separation. Specifically, t he Applicant admits on this form he has used marijuana but denies nervous trouble of any sort, frequent trouble sleeping, receiving counseling of any type, depression or excessive worry, or having been evaluated or treated for a mental condition. In addition to the lack of evidence support the claim the Applicant was diagnosed with PTSD, the NDRB also noted the Applicant’s record of performance is not typical of cases where PTSD has manifested and influenced a service member’s performance. Specifically, the Applicant did not display a pattern of declining performance of his duties following his combat tour as evidenced by the Applicant’s proficiency and conduct marks which increased up to the Applicant’s
SCM for drug use. The NDRB determined the awarded discharge characterization was appropriate and an upgrade founded upon the Applicant’s claim of PTSD would be inappropriate.

Although the NDRB rejects the Applicant’s contention his PTSD led to his misconduct, the NDRB advises the Applicant the VA announced in January 2008 a special access for 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 indepen dent o f 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, 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 or is referred to a court-martial fo r 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

Similar Decisions

  • USMC | DRB | 2009_Marine | MD0900933

    Original file (MD0900933.rtf) Auto-classification: Denied

    Article 112a is one such offense requiring, at a minimum, mandatory processing for an administrative separation, which usually results in an unfavorable characterization of discharge. The Applicant had complained of back problems, but medical professionals could not find anything wrong with his back.The NDRB determined the Applicant met the requirements for separation by reason of misconduct – drug abuse; his PTSD was not a factor at the time of his misconduct;and the awarded...

  • USMC | DRB | 2007_Marine | MD0700066

    Original file (MD0700066.rtf) Auto-classification: Denied

    Mandatory processing for separation is required for Marines who abuse illegal drugs. Elements of Discharge: [INVOLUNTARY] Date Notified: 20050511Basis for Discharge: due to: Least Favorable Characterization: Commanding Officer’s Intended Recommendation: Date Applicant Responded to Notification: 20050511 Rights Elected at Notification:Consult with Counsel Obtain Copies of DocumentsSubmit Statement(s) (date) Administrative Board Commanding Officer Recommendation (date): (UNDATED)SJA review...

  • USMC | DRB | 2007_Marine | MD0700884

    Original file (MD0700884.rtf) Auto-classification: Denied

    After a thorough review of the Applicant’s record, issues submitted, and post service accomplishments, the Board determined that clemency was not warranted and that the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed.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. Medical/Service...

  • USMC | DRB | 2007_Marine | MD0700568

    Original file (MD0700568.rtf) Auto-classification: Denied

    Summary of Service Prior Service: Inactive: USMCR (DEP)19991008 - 19991128Active: 19991129 - 20031001 Period of Service Under Review: Date of Enlistment: 20031002Years Contracted:; Extension: Date of Discharge:20050713Length of Service: 01 Yrs 09Mths11 DysLost Time:Days UA: Days Confined: Education Level: Age at Enlistment:AFQT: 36MOS:0811Highest Rank: Proficiency/Conduct marks (# of occasions):Fitness reports: Awards and Decorations (per DD 214):GCM, GWOTSM, NDSM, SSDR, NUC, KCM, NATO,...

  • USMC | DRB | 2014_Marine | MD1400126

    Original file (MD1400126.rtf) Auto-classification: Denied

    of controlled substances, 2 specifications) Specification 1: Wrongfully use cocaine, 188 ng/mL Specification 2: Wrongfully use marijuana, 22 ng/mL Sentence: (20050713-20050805, 24 days)SPCM: CC: Retention Warning Counseling: - 20050309: For unauthorized absence- 20051114: For failure to obey order or regulation Types of Documents Submitted/reviewedRelated to Military Service: DD 214: Service/Medical Record: Other Records: Related to Post-Service Period:...

  • USMC | DRB | 2009_Marine | MD0900291

    Original file (MD0900291.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL...

  • USMC | DRB | 2008_Marine | MD0801968

    Original file (MD0801968.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1. The Applicant also had a pre-service drug waiver for using marijuana prior to entering the Marine Corps.In a voluntary statement made by the Applicant after testing positive on a urinalysis test, he admitted to smoking marijuana approximately 160 times prior to the joining the Marine Corps, which contradicts his statement within his entry application of using marijuana three...

  • USMC | DRB | 2010_Marine | MD1000258

    Original file (MD1000258.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated to Military Service: DD 214:Service/Medical Record:Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Rehabilitation/Treatment: Criminal Records: Personal Documentation: Community Service: References: Department of VA letter: Other Documentation: Additional Statements:From Applicant: From/To Representation:From/ToCongress member: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD...

  • NAVY | DRB | 2011_Navy | ND1102014

    Original file (ND1102014.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated to Military Service: DD 214:Service/Medical Record:Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Rehabilitation/Treatment: Criminal Records: Personal Documentation: Community Service: References: Department of VA letter: Other Documentation: Additional Statements:From Applicant: From/To Representation:From/ToCongress member: Pertinent Regulation/Law A. Summary : After a thorough...

  • USMC | DRB | 2012_Marine | MD1200966

    Original file (MD1200966.rtf) Auto-classification: Denied

    of controlled substances, marijuana, 22 ng/ml) Sentence: Suspended: FOPSPCM: CC: Retention Warning Counseling: Types of Documents Submitted/reviewedRelated to Military Service: DD 214:Service/Medical Record:Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Rehabilitation/Treatment: Criminal Records: Personal Documentation: Community Service: References: Department of VA letter: Other Documentation: Additional Statements:From...