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USMC | DRB | 2009_Marine | MD0900933

Original file (MD0900933.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20090304

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)       20030618 - 20030715     Active:

Period of Service Under Review:
Date of Enlistment: 20030716     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20051209      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 24 D a y ( s )
Education Level:        AFQT: 56
MOS: 0331
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :    SPCM: CC:

NJP:
- 20050404 :       Article 92 ( Failure to obey lawfu l order - consuming alcohol)
         Article 134 (Wrongfully disobeyed a general regulation - providing alcohol to two underage Marines)
         Awarded : Susp ended:

SCM:
- 20050713 :       Art icle 112a (W rongful use of controlled substance, marijuana)
         Sentence : (20050713-20050805 (24 days)

Retention Warning Counseling :

- 20050404 :       For failure to obey order or regulation and soliciting another to commit an offense.
- 20050 511 :       For my illegal drug-related incident on 20050415. Specifically, marijuana usage identified through urinalysis and confirmed by NAVDRUGLAB message dated 4 May 2005.
- 20050511:      For testing positive in a drug test and pattern of misconduct

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. Discharge was inequitable because it was based on one isolated incident.
2. P ost- T raumatic Stress D isorder (PTSD) is a mitigating factor.

Decision

Date : 20 0 9 0810 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 118/11 (page 11) warnings; one nonjudicial punishment (NJP) for violations of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey lawful order, consuming alcohol under the legal age ) and Article 134 (Wrongfully disobeyed a general regulation, providing alcohol to two underage Marines); and one summary court-martial (SCM) for violation of the UCMJ: Article 112a (Wrongful use of controlled substance, marijuana, 31 ng/ml) (DoD cut-off level is 15ng/ml). The Applicant also had a pre-service drug waiver for using marijuana 30 times prior to entering the Marine Corps, and acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 10 June 2003. Based on the offense committed, processing for administrative separation is mandatory. When notified for a dministrative s eparation p rocessing, the Applicant waived rights to consult with qualified counsel, submit a written statement, and request an a dministrative b oard.

: (Decisional) ( ) . The Applicant contends his discharge was inequitable because it was based on one isolated incident in 24 months of service with no other adverse action. The NDRB advises the Applicant certain serious offenses, even though isolated, warrant separation from the service to maintain proper 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-m artial. The command did not pursue a punitive discharge , but opted instead for the more lenient administrative discharge. Based on his record of service and extensive use of marijuana prior to enlisting in the Marine Corps, the NDRB determined an upgrade would be inappropriate .

Issue 2: (Decisional) ( ) . The Applicant provided a letter from a marriage and f amily t herapist dat ed 9 February 2009, which stated the Applicant was diagnosed with PTSD and major depression, and used marijuana to self-medicate his PTSD . The NDRB requested , but did not receive the Applicant’s in-service medical records. The NDRB noted there is no mention of PTSD in the Applicant’s separation package and he did not make a statement when notified of administrative separation . At his SCM, the Applicant pled and was found guilty of wrongfully using marijuana. T he Applicant had complained of back problems, but medical professionals could not find anything wrong with his back . The NDRB determined the Applicant met the requirements for separation by re ason of misconduct – drug abuse; his PTSD was not a factor at the time of his misconduct ; and the awarded characterization of service was warranted.

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. 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 .

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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USMC | DRB | 2009_Marine | MD0900933

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