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USMC | DRB | 2008_Marine | MD0801968
Original file (MD0801968.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080925
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

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

Summary of Service

Prior Service:
 Inactive:         USMCR (DEP)       20040419 - 20040517     Active:  

Period of Service Under Review:
 Date of Enlistment: 20040518     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20050721      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 04 D a y ( s )
Education Level:        AFQT: 67
MOS: 0121
Proficiency/Conduct M arks (# of occasions): /   Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA :

NJP:

SPCM:   

SCM:

- 20050427 :      Article 112a (Wrongful use of controlled substance, marijuana)
         Sentence: (20050427-20050520, 24 days)

CC:

Retention Warning Counseling:

- 20050701 :       For my illegal drug involvement, (marijuana use identified through urinalysis confirmed by NAVDRUGLAB San Diego, CA message 051632Z Jan 05).

NDRB Documentary Review Conducted (date):        20080313
NDRB Documentary Review Docket Number:   MD08-00452
 NDR B Documentary Review Findings:                 Proper as issued and that no change is warranted.








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 :

Applicant Testified:
Applicant Available for Questions:
Witnesses:
Observers:

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 .




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

Applicant’s Issues

 1.       Youth and immaturity were mitigating factors .
2. M ental health contributed to misconduct.
3. Post-service achievement .

Decision

 Date: 2009 1014             Location: Washington D.C.        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall MISCONDUCT .
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 warning and one summary court-martial (SCM) for o f the Uniform Code of Military Justice (UCMJ): Article 112a ( Wrongful use of a controlled substance , marijuana) . NAVDRGLAB message R051632Z J AN05 confirm ed the Applicant ’s positive test for Tetrahydrocannabinol ( THC - marijuana) , the drug level in the Applicant’s system for marijuana was 18 ng/ml ; the threshold level for positive testing is 15 ng/ml. The Applicant also had a pre-service drug waiver for using marijuana pri or to entering the Marine Corps . I n 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 withi n his entry application of using marijuana three times. Based on the Article 112a offense committed, the Applicant’s processing for administ rative separation was mandatory. When processed, the Applicant waived his right to request an administrative discharge board and submit a written statement, but consulted with a qualified counsel.

: (Decisional) ( ) . The Applicant contends his youth and immaturity contributed to his mistake s . The NDRB noted that in a voluntary statement made to Naval Criminal Investigated Service (NCIS) , he was asked if he k new the Marine Corps’ policy on illegal drug use, which he responded by saying , “ Not tolerate d , ” which confirm ed the Applicant ’s aware ness of his misconduct at the time of his offense . The Applicant made a dditional comment s to the NCIS regarding his marijuana use to include his purchase of marijuana on 15 different occasions while on leave after finishing administration school . His statement included his voluntarily admission of smoking marijuana on numerous other occasions. While he may believe his youth and immaturity was the underlying cause of his misconduct, the NDRB determined that the Applicant was responsible for his misconduct and should be held accountable for his actions.

Issue 2 : (Decisional) ( ) . The Applicant contends that his mental health was a mitigat ing factor in his misconduct and use of marijuana. Specifically, he claimed that his bipolar disorder and secondary p ost- t raumatic stress d isorder ( PTSD ) mad e him depressed, which led to his use of drugs. The Applicant provided post-service medical records from the Department of Veterans Affairs (VA), who diagnosed the Applicant with bipolar disorder , but not with PTSD . In reviewing the in-service medical records of the Applicant, the NDRB found no evidence he was ever diagnosed with bipolar or secondary PTSD during his military service.

The NDRB noted that in the Applicant ’s confession to NCIS , the Applicant did not mention anything about having b i polar or secondary PTSD (allegedly due to basic training) , nor did he offer mental health issues to NCIS or his command as a defense to his drug use . H e did note in his statement that he was going to beat the urinalysis test by taking niacin supplements to remove the THC from his fat cells “so I wouldn’t pop positive on the urinalysis test.” While the Applicant believe s his bipolar disorder contributed to his misconduct, he provided no evidence that he was diagnosed while on active duty as bipolar, nor did he provide any evidence that he was not accountable for his behavior due to being bipolar . T he NDRB determined that the Applicant’s long history of illegal drug use, to include use prior to entering the service, was the primary contributor to his positive urinalysis and adverse discharge vice a bipolar disorder diagnosed after his separation and alleged PTSD (undiagnosed) attributed to basic training , which occurred after his pre-service drug ab use .

Issue 3: (Decisional) ( ) . The Applicant contends his post-service achievement warrants consideration for an upgrade. The Applicant provided a college tran script, which indicated he had completed 6 college courses. The NDRB appreciated the Applicant ’s pursuit of college credit after his service, but determined the evidence of post-service conduct was not sufficient enough to warrant consideration for an upgrade of his discharge characterization. To warrant consideration for an upgrade , the Applicant’s post- service efforts needed to be more encompassing. The Applicant could have produced additional evidence as stated on his DD Form 293. On page 4, Item 8, in the instructions for completion of DD Form 293, the Applicant is notified to submit evidence "which substantiate s or relate s directly to your issues in Item 6" (Issues: Why an upgrade or change is requested and justification for the request). Additionally, upon receipt of the Applicant's DD Form 293, the NDRB mails an acceptance letter that includes Information Concerning Review Procedures , which discusses the submission of additional documents in paragraph 3, Submission of Evidence , and in the last section on page 4, Information Pertaining to a Review Based Upon Post-Service Conduct .

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and service record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .


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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