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USMC | DRB | 2009_Marine | MD0900291
Original file (MD0900291.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20081124
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)      20020103 - 20020908     Active: 

Period of Service Under Review:
 Date of Enlistment: 20020909     Age at Enlistment:
Period of Enlistment : Years Months
Date of Discharge: 20050321       H ighest Rank:
Length of Service: Year(s) Month(s) 12 D ay(s)
Education Level:         AFQT: 80
MOS: 0351
Proficiency/Conduct Marks (# of occasions): ( ) / ( )   Fitness Reports:
Awards and Decorations (per DD 214):     Rifle

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

NJP:
- 20040407 :      Article 112a (Drug use, wrongful use of controlled substance, marijuana and cocaine)
          Awarded: Suspended:

- 20041229 :      Article 91 (Disrespect)
         Article 92 (Failure to obey order, regulation)
         Article 134 (Drunk and Disorderly)
          Awarded: Suspended:

Retention Warning Counseling:
- 20040401 :      For illegal drug related incident on 15 March 04. Specifically, cocaine and THC and a underage drinking incident on 20041210
- 20041229 :      For underage drinking incident on 20041210
- 20050318:      For lack of personal accountability by not submitting a missing gear statement in a timely manner and not following up on a missing gear statement that had been submitted.

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:


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

Applicant’s Issues

 1. Applicant claims his d ischarge is inequitable because overseas combat exposure led to post traumatic stress disorder (PTSD).
2. Applicant claims s econd NJP was unfounded, and should not contribute to the establishment of a “pattern of misconduct.”
3. Applicant’s laudable service renders the “Other Than Honorable” discharge inequitable.

Decision


 Date: 2009 0709             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 three NAVMC 1070 (Page 11) warnings and two non - judicial punishments (NJPs) for violation of the Uniform Code of Military Justice (UCMJ): Article 91 (Disrespect towards Camp Pendleton military police), Article 92 (Failure to obey order, regulation: drunk and disorderly while underage), Article 134 (Drunk and disorderly), and Article 112a (Wrongful use of controlled substance, marijuana 127 ng/ml and cocaine, 17,748 ng/ml – threshold levels for positive readings are 15 ng/ml for marijuana and 100ng/ml for cocaine). The Applicant also had a pre-service drug waiver for using marijuana prior to entering the Marine Corps, and acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs policy statement on 19 December 2001. Based on the Article 112a violation , processing for administrative separation is mandatory. When processed , the Applicant waived right to request an Administrative Board, but elected his rights to consult with qualified military counsel and submit a written statement.

 : (Decisional) ( ) . The Applicant contends th at his discharge is inequitable because of PTSD —allegedly resulting from a single munition hitting his compound in Kuwait and his participation in crowd control missions . The Applicant provided a letter from a Licensed Clinical Social Worker (LCSW) from the U.S . Department of Veterans Affairs (VA) of 22 February 2008, stating she treated the Applicant between May and Oct 2007 (post-service) and later diagnosed him with PTSD. T he Applicant did not provide any in-service medical documentation to determine whether or not the he was ever diagnosed with PTSD while on active duty. The NDRB found no evidence that the Applicant was diagnosed with PTSD while on active duty; h owever, the NDRB found documentation stating the Applicant r efuse d a medical officer’s evaluation (MOE) after he tested positive for both cocaine and marijuana on 21 April 2004. The NDRB reviewed the Applicant’s proficiency and conduct (pro/con) marks prior to and after his return from combat duty and found no significant change until his lowered marks due to his positive urinalysis. In the Commanding Officer ’s ( Company B ) letter 1000 BCO/V14 of 08 April 2004, the Commander noted that the Applicant “was counseled numerous times by all Marines in his company chain of command .. .He was one of those Marines that absorbed 90% of his leadership’s time.” In his statement to the Commanding General, the Applicant wrote, “ … a cigar filled with marijuana was passed to me. I knew what was in it and I smoked it anyways.” The evidence of record does not support that the Applicant’s claim that he should not be held accountable for his actions. The NDRB determined Applicant ’s post-service PTSD diagnosis was not a mitigating factor associated with the Applicant’s in-service misconduct.

For the Applicant’s information, the NDRB did review the claim of a missing signature page involving the Applicant’s urinalysis. The Board noted the Legal Officer ’s ( 1 st Marines / Rear ) letter 1900 S-1 of 31 January 2005, which indicated there was no record of the signature page of the urinalysis results that formed the basis of the Applicant’s first NJP ; however, later in the same letter, the Legal Officer requested to the Division Staff Judge Advocate (SJA) to “process this [administrative separation] package even though this page is not available … We do have the Bar Code [linking sample to service member] and the Drug Message [confirming sample as positive] .” Based on this letter and the Applicant ’s own admission in writing on using illegal drugs , the NDRB opined that lack of the signature page did not invalidate the urinalysis.

 : (Decisional) ( ) . The Applicant’s counsel contends the Applicant’s s econd NJP was unfounded, and therefore should not contribute to the establishment of a “pattern of misconduct. ” For the Applicant’s information, separation by reason of a Pattern of Misconduct requires a minimum of two incidents occurring within one enlistment. The infractions may be minor or more serious, and need not have been the subject of NJP or military or civilian conviction. From the Applicant’s commanding officer’s letter mentioned above, the Applicant was counseled numerous times before his positive urinalysis. The record of evidence shows he was subject to two NJPs and was counseled repeatedly on his misconduct —meeting the standard . The Applicant did not provide sufficient evidence to support that the NJP was unfounded . The Board determined the command was warranted to separate the Applicant for a pattern of misconduct.

Issue 3: (Decisional) ( ) . The Applicant’s counsel contends the Applicant’s laudable service renders the “Other Than Honorable” discharge inequitable. The NDRB advises the Applicant that certain serious offenses warrant separation from the service to maintain good order and discipline. 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. Commanders may also pursue confinement and punitive discharge through a special or general court-martial. The command did not pursue a punitive discharge but opted instead for a more lenient administrative discharge. In addition, the Applicant’s civilian counsel mentioned that the Applicant did not have any drug problems before coming into the Marine Corps. The record of evidence shows the Applicant required a pre-service drug waiver for the using marijuana prior to enlisting.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, 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 6210, MISCONDUCT , 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 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 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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