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USMC | DRB | 2009_Marine | MD0900397
Original file (MD0900397.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)     20030602 - 20031026     Active:  

Period of Service Under Review:
 Date of Enlistment: 20031027     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20060908      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 12 D a y ( s )
Education Level:        AFQT: 53
MOS: 0331
Proficiency/Conduct M arks (# of occasions): 3.9 ( 8 ) / 3.8 ( 8 )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:

- 20050830 :      Article 92 ( Failure to obey orders ), 3 specifications
                   Specification 1: Consume alcohol while on duty.
                   Specification 2: Possess a personal firearm not registered and stored at the armory.
                  Specification 3: Disobeyed an order from a GySgt.
         Article 134 (Negligently discharge a firearm)
          Awarded: Suspended:

- 20060725 :      Article 112a ( Wrongful use of a controlled substance)
         Awarded: Suspended:

SCM:     SPCM:            CC:

Retention Warning Counseling:

- 20050815 :      For conduct not conducive to good order and discipline.
 - 20051215 :      For alcohol rehabilitation failure.
 - 20060605 :       For failure to complete command prescribed alcohol treatment program and NJP for drinking on duty, wrongful possession of an unregistered firearm, failure to follow orders, and negligent discharge of a weapon.
- 20060807 :      For drug use detected by urinalysis.
- 20060807 :      For completion of required treatment due to positive urinalysis.



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 :
         -Medical opinion of Senior Medical Advisor dated 2 June 2009.
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 s of the UCMJ, Article 92 (Failure to obey orders) and Article 1 12 a (Wrongful use of controlled substances).



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

Applicant’s Issues

 1. Post-traumatic stress disorder (PTSD) and t raumatic brain i njury (TBI) contributed to his misconduct.
2. No evidence of substance abuse.

Decision

 Date: 20 0 9 0604            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 due to his diagnosis with PTSD and TBI which contributed to his 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 five retention warnings and two NJPs for violation of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey orders); Article 112a (Wrongful use of a controlled substance , methamphetamine ); and Article 134 (Negligent discharge a firearm). The Applicant required a pre-service drug waiver and signed the Statement of Understanding, Marine Corps Policy Concerning Illegal Use of Drugs on 28 May 2003. The NDRB advises the Applicant certain serious offenses warrant sepa ration from the service to maintain proper order and discipline. Violation of Article 112a is one such offense requiring mandatory separation regardless of time in service or grade. 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 court-martial but opted instead for an administrative discharge.

The NDRB carefully considered the record of evidence in this case and determined the evidence does not support the Applicant’s contention. Specifically, the NDRB notes the Applicant received extensive psychiatric treatment beginning on 12 July 2005, including hospitalization between 22 July and 25 July 20 05. The hospitalization report and subsequent mental he alth evaluations and treatments consistently note the Applicant’s substance abuse problems pre-dates the Applicant’s combat service. Most significantly, the Applicant admitted during hospitalization to the use of a “whole lot of drugs ” after high school. This directly conflicts with the Applicant’s statement of only having used m arijuana on three occasions before enlisting as indicated on his Drug Abuse Screening Form dated 28 May 2003 . The NDRB also notes the Applicant’s substance abuse consultatio n conducted on 25 July 2005 state s the Applicant’s heavy use of alcohol began before his combat deployment . Finally, the NDRB notes the Applicant was repeatedly determined to be competent and fully accountable for his actions inclu ding, at least, on 1 and 2 August 2005. The Applicant’s service me dical record, which was reviewed by the NDRB in determining the Applicant’s case, was very limited in content. The NDRB is therefore unable to fully evaluate the Applicant’s contention he was never screened for TBI. The NDRB relied upon the presumption of regularity in the conduct of Government affairs in presuming the Applicant was evaluated for TBI following his rollover vehicle accident on 17 July 2005. The NDRB determined the awarded characterization was appropriate and an upgrade would be inappropriate.

: ( ) . The Applicant contends he is entitled to a discharge upgrade due to a lack of evidence of substance abuse. The NDRB notes the Applicant’s record of service clearly references a Naval Drug lab message confirming the use of amphetamines and methamphetamines. Furthermore, the record of evidence clearly shows the Applicant did not refuse punishment by NJP for his drug use by demanding trial b y court-martial. At a court-martial the Applicant would have been able to mount a defense against the charges the Applicant now feels were unjust. The NDRB determined an upgrade would be inappropriate.

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

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