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USMC | DRB | 2009_Marine | MD0900010
Original file (MD0900010.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20081001
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)     20020108 - 20020127     Active:  

Period of Service Under Review:
Date of Enlistment: 20020128     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20060707      H ighest Rank:
Length of Service : Y ea rs M on ths 10 D a ys
Education Level:        AFQT: 65
MOS: 0621
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:
Awards and Decorations ( per DD 214):      Rifle (2) KDSM CoC (Individual award) CoA HSM

Periods of UA / CONF :

NJP:
- 20020806 :       Article 92 (Failure to obey order by drinking alcohol under the age of 21)
         Article 134 (Disorderly conduct, drunkenness)
          Awarded: Suspended:
- 20021204 :      Article 92 ( Failure to obey order by drinking alcohol under the age of 21)
          Article 134 (Disorderly conduct, drunkenness)
          Awarded: Suspended:
- 20040115 :      Article 92 (Wrongfully have liquor in barracks room)
         Awarded : Susp ended:

SCM: SPCM: CC:

Retention Warning Counseling :
- 20020806 :       For violation of Article 92 and 134 of the UCMJ. Specifically, disorderly conduct and drunkenness.

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 :


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

Applicant’s Issues

 1. Alcohol use le d to misconduct.
2. Punishment was too harsh.
3. Severe mental illness led to drug use.
 4 . Post-service diagnosis .
 5. Post-service conduct.
Decision

 Date: 20 0 9 0312            Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall IN LIEU OF TRIAL BY COURT-MARTIAL .
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 discharg e if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of g overnment al 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 one retention warning and three nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 92 (Disobeying a lawful order) and Article 134 (Drunk and disorderly). Violation of Article 92 is considered a serious offense which could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentence by a special or general court - martial. Per his DD Form 214, the Applicant requested and was granted an Under Other Than Honorable Conditions discharge in lieu of trial by court-martial for unspecified charges. Unfortunately, the Board did not have access to the final discharge documentation, nor did the Applicant provide them, and was unable to determine the actual charges which led to the Applicant’s separation. However, the NDRB reasonably conclude d that the charges included violations of Article 86 (Absence without leave) as the Applicant served nearly six months past his contracted end of active service date without reenlisting or extending his contract . The NDRB also determined that his discharge involved an Article 112a violation (Wrongful use, possession of controlled substances) based on evidence submitted by the Applicant with his DD Form 293 application.

: (Decisional) ( ) . The Applicant contends he is entitled to a discharge upgrade because his misconduct was mitigated by his alcohol dependency. While the Applicant may believe his alcohol dependence was the underlying cause of his misconduct, the NDRB determined that his alcohol abuse was not an acceptable excuse for inappropriate conduct or poor judgment.

: (Decisional) ( ) . The Applicant contends he is entitled to a discharge upgrade because the punishment received was too harsh considering the offenses committed. The Applicant should understand his separation was administrative in nature, not punitive. A s discussed above, violations of Article 92, as well as violations of Article 86 and 112a could have resulted in punishment substantially more harsh than the d ischarge the Applicant received . The NDRB determined an upgrade would be inappropriate.

 : (Decisional) ( ) . The Applicant contends that his severe mental health issues led to his drug use. He provided documentation from a medical provider who noted , “Additionally, I can state with reasonable medical certainty that his use of drugs while waiting for his final discharge ( and the only reason for his OTH ) was caused or contributed by his severe underlying mental illness.” The NDRB interprets the Applicant’s “use of drugs” to mean controlled substances such as marijuana. As noted in the first paragraph, t he NDRB did not have the separation package to determine the actual charges which led to the Applicant’s separation and, therefore, cannot form a basis of relief. The Applicant’s doctor also stated , “there is usually a prodromal period (before overt symptoms manifest), and usually, this lasts for at least a year. ” The NDRB opined that if the Applicant was in a prodromal period at the time he used drugs, his mental health was not severe enough to be a mitigating factor in his misconduct. For the Applicant’s information, the use of controlled substances usually results in discharges with an Under Other Than Honorable Conditions characterization, and he also met the criteria for being discharged due to a pattern of misconduct, which usually results in the same characterization.

Issue 4 : (Decisional) ( ) . The Applicant contends he is entitled t o a discharge upgrade due to a post-service diagnosis of Schizophren i form Disorder ( Provisional ) , as stated in a letter from his doctor on 30 May 2007 . The Applicant received treatment for this disorder during April and May 2007 , but at the time was not fully diagnosed with schizophrenia because his symptoms had not been present for at least six month s per The Diagnostic and Statistical Manual of Mental Disorders, 4 th Edition, Text Revision (DSM-IV-TR) . The pr ovisional diagnosis given stated , “there is usually a prodromal period (before overt symptoms manifest), and usually, this last s for at least a year. ” The Applicant’s doctor also state d , “I am convinced that his very severe condition was incurred during his four years of active duty and thus is a ratable disorder, and one for which he should be eligible for medical/psychiatric care. ”

The NDRB was not able to obtain the Applicant’s medical records for review. Contact with t he Veteran s Administration office in Maine determined that they possessed only his dental records and the Board did receive a copy. Therefore, the Board must rely on the presumption of regularity in the conduct of Government affairs . The NDRB does not dispute the recent diagnosis , but cannot determine from the record of evidence if the Applicant’s severe mental condition existed during his active duty service , and thus offered mitigation . The Applicant did not provide any documentation indicating a possible psychiatric condition while in service. Additionally, t he NDRB noted that Applicant’s pattern of misconduct preceded this diagnosis by more than three years. The NDRB opin e d the Applicant showed no signs of his illness during his time in service or at his discharge medical evaluation otherwise he would have been referred for a mental health evaluation. The NDRB determine d the available evidence does not support the Applicant’s contention that his post-service diagnosis mitigates his long pattern of misconduct .

Issue 5 : (Decisional) ( ) . The Applicant contends his post-service conduct warrants consideration for an upgrade. The NDRB considers post-service conduct to determine if the misconduct committed during active duty was indicative of the Applican t's character or an aberration. Besides the Applicant’s statement on the DD Form 293, he failed to provide any additional documentation and evidence on his behalf to support a post-service conduct review. The Applicant’s statements alone, without sufficient documentary evidence, are not enough to form a basis of relief. On page 4, Item 8, in the instructions for completion of DD Form 293, the Applicant is notified to submit evidence "which substantiate or relate 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 . However, even if the Applicant could have produced additional evidence to support a review based on his post-service conduct, the Applicant must have a full understanding that post-service conduct alone does not guarantee an upgrade.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, and d ischarge p rocess, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .

 The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct .

Pertinent Regulation/Law

 A. Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications .

 C . 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 .


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 Disabled American 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 their 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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