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USMC | DRB | 2009_Marine | MD0901154
Original file (MD0901154.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090330
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)       20030728 - 20030902     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20030903     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080213      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 02 D a y ( s )
Education Level:        AFQT: 34
MOS: 0351
Proficiency/Conduct M arks (# of occasions): 3.7 ( NFIR ) / 3.1 ( NFIR )        Fitness R eports:
Awards and Decorations ( per DD 214):      Rifle (Iraq) (2) N

Period of UA : 20060609-20060723 (44 days); 20061002-20061117 (46 DAYS)
CONF: 20061117-20061119 ( IHCA for 3 days ); 20070313-20070716 ( 126 days )

NJP:
- 20060106 :       Article 112a ( Wrongful use of cocaine )
                  Awarded : Susp ended:
SPCM:
- 20070426 :       Art icle 86 (UA from unit 20061002-20061117 , 46 DAYS)
         Article 107 (False official statement)
          Article 112a (Wrongful use of cocaine)
          Article 121 ( Larceny: 2 specifications -s teal an Averatec laptop computer and an Alpine car stereo)
          Article 130 ( With intent to commit a criminal offense, l arceny)
                   Sentence : BCD CONF 9 MONTHS FOP RIR E-1

SCM: CC:

Retention Warning Counseling :
- 20060123 :       For violation of Article 112a, wrongful use of a controlled substance.

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 . Applicant seeks service benefits.
2. Applicant seeks clemency.

Decision

 Date: 20 0 9 1029            Location: Washington D.C .         R epresentation :

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

Discussion

 With respect to a discharge adjudged by a court-martial case, 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 Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this par ticular case merited clemency. In response to the Applicant’s clemency request, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. The Applicant’s record of service included 6105 counseling warning , nonjudicial punishment (NJP) for o f the Uniform Code of Military Justice (UCMJ): Article 112a (Drug abuse, wrongful use of a controlled substance: Cocaine) ; and Special Court-Martial (SPCM) for of the UCMJ: Article 86 (Unauthorized absence for 46 days that ended in apprehension), Article 107 (False official statement to an investigator), Article 112a ( Drug abuse, wrongful use of a controlled substance: Cocaine ), Article 121 (Larceny: 2 specifications for stealing an Averatec laptop computer and an Alpine car stereo) and Article 130 (Housebreaking – entered another Marines room with intent to commit a criminal offense: larceny). In addition, the Applicant had an additional unauthorized absence for 44 days, which doesn’t appear to have been adjudicated. 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 on 11 July 2003. The Applicant was convicted at a SPCM and was discharged from the Marine Corps.

: (Nondecisional) The Applicant seeks 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.
Issue 2 : (Decisional) ( ) . The Applicant contends he should be granted clemency because he suffered a lot of setbacks due to personal problems that were emotionally hard to cope with before, d urin g and after his enlistment, and stated he was “diagnosed with combat related PTSD [post-traumatic stress disorder] and anxiety while in the Marine Corps.” The Applicant’s personal problems included civil authority convictions, youth and immaturity, deprived background/upbringing, marriag e and childcare problems, other family problems , medical and physical problems, and drug and alcohol use. While the Applicant may f eel his personal problems were the underlying cause of his misconduct, the record of evidence does not demonstrate the Applicant was not responsible for his misconduct or should not be held account able for his actions due to his personal problems . The NDRB recognizes that many of our servicemembers have similar issues at the time they enlist for service or during their time in service but still manage to serve honorably. The NDRB does not view the Applicant’s personal problems to be a mitigating factor or a sufficient reason for his misconduct.

In verifying the Applicant’s combat service, the NDRB found several issues to doubt whether or not the Applicant’s previous in-service misconduct was an aberration and not indicative of the member’s overall character. The Applicant stated, “I served in Iraq for 8 months in the Anbar Providence from 7/05-2/06.” O n page 4 of 5 of the Individual Separation Information, the Applicant was in Kuwait and Iraq from 21 February 2005 to 15 September 2005 , not July 2005 to February 2006 . The time in theater is also verified per his Post-Deployment Health Assessment ( PDHA ) of 27 September 2005—the dates of theater arrival and departure were listed as 02/2005 and 09/2005, respectively. Although the Applicant was awarded a combat action ribbon, he answered “no” to the following questions: “7. Did you see anyone wounded, killed or dead during this deployment? 8. Were you engaged in direct combat where you discharged your weapon? 9. During this deployment, did you ever feel that you were in great danger of being killed? and 10. Are you currently interested in receiving help for a stress, emotional, alcohol or family problem?” The Applicant also stated, “I went AWOL [away without leave] tw ice for 30 days.” As noted in the first paragraph , the Applicant had two periods of unauthorized absences, one for 46 days and the other for 44 days. Furthermore, the NDRB found documentation that the Applicant withheld pertinent information with regards to his pre-service history of anxiety and additional drug usage besides marijuana upon enlistment.
In verifying the Applicant’s PTSD, the NDRB found i n the Applicant’s PDHA of 27 September 2005, that there was nothing noted by the Applicant or the Health Care Provider to suggest a referral or an additional follow-up appointment was required. In the Report of Medical Assessment prior to his discharge (separation physical), the Applicant stated he had anxiety and PTSD, but the health care provider stated, “Pt. reports hx [history] of PTSD however his chart only mentions anxiety.” Additionally, the health care provider noted the Applicant had a history of polysubstance abuse, alcohol dependence, anxiety and chronic foot pain. The Treatment Summary, Substance Abuse Rehabilitation Program, Naval Hospital, Camp Lejeune, NC, of 19 January 2006, stated t he Applicant was diagnosed with Alcohol Dependence (DSMIV-TR, 303.90); Cocaine Dependence (304.20) and Anxiety Disorder, Not Otherwise Speci fied (300.00). T he VA History & Physical – Admission note of 19 March 2008, stated the initial diagnostic impression was PTSD. The VA Mental Health Domiciliary E& M Note of 21 March 2008, listed the Applicant’s diagnostic impression as Post-traumatic Stress Disorder, Chronic; Cocaine dependence; Opioid dependence (oxycontin, vicodin, heroin, methadone); Benzodiazepine dependence (valium, xanax, klonopin); Alcohol dependence; and Nicotine dependence. Cognitive Disorder, NOS [not otherwise specified] was noted in the 26 June 2008 Mental Health E & M note. While the VA has diagnosed the Applicant with PTSD, the NDRB fo und no evidence the Applicant was ever diagnosed with PTSD while in the service. While symptoms of PTSD may manifest themselves at a later date, the NDRB opined that the Applicant’s PTSD was not a mitigating factor in his misconduct.

The Applicant received outpatient rehabilitation treatment for his drug and alcohol abuse while in the Marine Corps and was treated by outside medical facilities for addiction to opioids, cocaine and alcohol after his discharge . The Applicant admitted he had a relapse as late as February 2009, w here he continued to use heroin, cocaine and marijuana. This information of continued illegal drug use was most troubling for the NDRB, which logically opined that the Applicant’ s drug problem existed before, du ring and after the Marine Corps and was not strictly the result of PTSD . D espite the treatment and medication he received prior to his discharge and is now receiving for his drug an d alcohol dependence and PTSD , t he NDRB determined that the Applicant ’s well-being and improvement depends on him taking responsibility for his actions. Therefore, t he NDRB determined it would be inappropriate to consider a discharge upgrade for one who is still committing some of the same acts that led to his discharge. Clemency denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and 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, Service Benefits , and Post-Service Conduct .

Pertinent Regulation/Law
A. Paragraph 1105, DISCHARGE ADJUDGED BY SENTENCE OF 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)(a), 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 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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