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USMC | DRB | 2009_Marine | MD0900790
Original file (MD0900790.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090219
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)       20021114 - 20030113     Active:  

Period of Service Under Review:
Date of Enlistment: 20030114     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20060508      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 23 D a y ( s )
Education Level:        AFQT: 86
MOS: 0311
Proficiency/Conduct M arks (# of occasions): 4.1 / 4.1    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle Pistol (2)

Periods of UA : 20031104-20031105 (2 Days)

NJP:
- 20051220 :      Article 112a (Wrongful use of cocaine)
         Awarded : Susp ended:

SCM:

SPCM:

CC:

Retention Warning Counseling :

- 20031022 :       For assignment to Marine Corps Body Composition Program.

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 :

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. (Decisional) Misconduct was an isolated incident and a result of PTSD.

Decision


 Date: 20 0 9 1001        Location: Washington D.C .         R epresentation :

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


 Issue 1: Decisional ( Equity ) . The Applicant is requesting an upgr ade in the characterization of his discharge from Under Other Than Honorable Conditions to Honorable because he claims his one time cocaine use was the result of PTSD . 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 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 reflects one 6105 counseling warning , and one Non-judicial Punishment (NJP ) for violation of the Uniform Code of Military Justice (UCMJ): Article 112a (Wrongful use of cocaine). The Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 12 November, 2002. Based on the offense committed, processing for administrative separation is mandatory. When notified for Administrative Separation Processing, the Applicant consulted with a qualified counsel, but waived his right to submit a written statement, and request an Administrative Board.
The Applicant states he suffered severe emotional trauma as a result of watching members of his unit die while serving in Baghdad and seeing dogs eat the corpses of their owners while on Hurricane Katrina humanitarian relief duty in New Orleans. While “blowing off steam” with his buddies, he made the poor choice of using cocaine, the first and only time in his life. He claims this drug use was due to the fact he was suffering from PTSD and the claimed he was not given adequate opportunity to seek treatment for drug use. The Applicant submits a Department of Veterans Affairs Rating Decision dated 23 January 2008, where he was granted a 30% service connected disability rating f or PTSD. The Applicant claims in his personal statement in his DD 293 R eview of Discharge application, he is not a drug addict and has not used illegal substances since he experimented with cocaine that one time. ( It is noted cocaine is rarely a starter drug ) . However , in his own statement in his VA compensation claim dated 24 September 2007, he admits using marijuana for six months after he returned from Iraq . Additionally, he states he last used the drug during July 2007, two months before his VA intervie w and 14 months after his discharge from active duty . This admission shows , at a minimum, a 3 yr plus history of substance abuse.
The Applicant claims the USMC did not “TAKE CARE OF ITS OWN ” by not ensuring he received medical treatment for his PTSD and his substance abuse. Although he claims to have suffered from PTSD while on active duty, the Applicant did not report any problems in his post-deployment health assessments because he states if he reported any mental health issues, he would have been denied leave and have had to spend time undergoing psychological evaluations. Commanders have the responsibility to ensure their subordinates receive proper medical care. A military member is only denied leave if the command feels he may be in danger of self-harm or injury to others. The Applicant produces no evidence he was or would be denied leave if he honestly completed his post-deployment health assessment. Although the VA validated his PTSD claim, the Applicant did not report to anyo ne in his unit he was suffering from PTSD while still on active duty. In order to receive proper treatment, he had the obligation to report the medical problem to the appropriate authorities . The Applicant fails to demonstrate he used other lega l l y authorized methods (i.e. counseling, therapy, prescription drugs) to address his PTSD symptoms and how they failed which caused him to resort to illegal drug use.
The On 24 Marc h 2006, the Applicant was referred to a 1 week IMPACT training for substance abuse scheduled to commence 10 April 2006 , a month before he was to be discharged . Illegal drug use by members of the armed services will not be tolerated. As stated above, separation processing is mandatory in these cases. Rehabilitation does not mean the member will be allowed to remain on active duty . The Applicant was given an opportunity to address his substance abuse issue.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, service r ecord entries, discharge p rocess and statement submitted by the Applicant , the Board found Therefore, the awarded characterization of service shall remain Under Other Than Honorable Conditions, and the narrative reason for separation shall remain Misconduct.

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his discharge, 8 May 2006 . The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct .


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 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 Board for Correction of Naval Records (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 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 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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