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USMC | DRB | 2009_Marine | MD0901726
Original file (MD0901726.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090602
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)       20050628 - 20050717     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20050718     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20090403      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 17 D a y ( s )
Education Level:        AFQT: 32
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( ) / 2.4 ( )         Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle (IRAQ) CoC (INDIVIDUAL AWARD)

NJP:

SCM:

- 20070720 :      Article (Drugs – cocaine)
         Sentence: 20070618 – 20070719 (32)
         SCMSCA’s: Charge I, violation of article 92 (Failure to obey a lawful order) and sole specification thereunder is disapproved. Charge II, violation of article 112a (Drugs – cocaine) , and sole specification thereunder is approved.
SPCM:

- 20080415 :      Article (UA on or about 20071107 – 20080103, 57 days)
         Article (Drugs) , 2 specifications
         Specification 1: On or about 20070826 and 20070905 wrongfully use cocaine. 11,985ng/m l .
         Specification 2: On or about 20071002 wrongfully distribute about 3.3 grams of cocaine.
         Sentence : BCD 120 days
         CA’s Action: Pretrial confinement 20080104 – 20050414, 102 days, is credited towards confinement.
CC:

- 20071107 :      Offense: Various offenses pled guilty and released.
         Sentence: Ordered to attend a drug rehabilitation program.

Retention Warning Counseling:



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. 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 .


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

Applicant’s Issues

1. Decisional issu e . Applicant is suffering from post-traumatic stress disorder ( PTSD ) and was denied appropriate medical care.
Decision

 Date: 20 10 0331            Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall .
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 Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. 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. 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 case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The Applicant’s record of service included a s ummary c ourt- m artial conducted on July 20, 2007 , for violations of the Uniformed Code of Military Justice ( UCMJ ), Article 112 (Wrongful use of controlled substances – cocaine ). On April 15, 2008 , he was the subject of a s pecial court-m arital f or violations of the UCMJ : Article (Unauthorized absence on or about 20071107 – 20080103, 57 days) , Article ( Wrongful use of controlled substances, 2 specifications : 1 ) o n or about 20070826 and 20070905 , wrongfully use cocaine, 11,985ng/ml, and 2 ) on or about 20071002 wrongfully distribute about 3.3 grams of cocaine ) . He was sentenced to 120 days of confinement and a Bad Conduct discharge. Additionally, t he Applicant was convicted in a civilian court on October 2, 2007 , for variou s unspecified offenses. As a result of this conviction, he was ordered to attend a civilian drug rehabilitation program. The Applicant did not have a pre-service drug waiver , but on 10 October 2007 , he admitted to his mental health provider that he had used Oxycontin prior to joining the USMC. He a cknowledged complete understanding of the Marine Corps Policy Conc erning Illegal Use of Drugs on 27 June 2005 .

: (Decisional) ( ) . The Applicant stated after he returned from Iraq, he was denied prope r medical treatment for his PTS D . He claim ed he did not receive the training or medications necessary to treat his PTSD , and as a result , he was wrongfully discharged and his punishment wa s unjust. Review of the Applicant’s service and medical records reveal ed he was involved in heavy combat , which resulted in the loss of life of f our of his friends. Additionally, he was present at the scene of a suicide bombing , which claimed the lives of 30 Iraqi civilians. Review of the Applicant’s medical records show ed he was hospitalized for two days from 4-6 June 2007 , for suicidal ideations and depression. He was seen for PTSD and it was noted he suffered from a history of depression. The Applicant was prescribed Zoloft for these problems . He was found fit for duty and released from the hospital. While confined to t he b rig , as a result of his special c ourt-martial conviction, he was advised to continue seeing a psychiatrist . However, after his discharge, the Applicant never made a fol low- up appointment . On 2 August 2007, he was offered, but refused substance abuse rehabilitation . It was not until October 2007, that he admitted to being addicted to Oxycontin (using daily) and that he had also been abusing cocaine. The Applicant stated he cannot control his problem without help. A doctor again recommended he attend an in-patient rehabilitation program. Despite acknowledging his addiction, the Applicant did n ot voluntarily enter a military- sponsored drug rehabilitation program. However, the Applicant was absent from hi s unit without authority from 7 November 2007 to 3 January 2008, because he was in a civilian court- ordered drug rehabilitation program as a result of a conviction of civilian offenses .

The Applicant’s combat tour in Iraq may be considered as a mitigation circumstance to his cocaine use. However, he refused proffered re habilitation after his summary court m arital conviction on 20 July 2007. His unit, conscious of the impact his combat tour had on his behavior and in recognition to his service to his country, chose not to administratively separate him for drug abuse. His company commander stated i n the special court-martial record he attempted to help the Applicant recover. On 15 April 2008, t he App licant pled and was found guilty in his special court-m artial for distribution of cocaine to a friend , which t he Applicant obtained from his off-base dealer. Again, his company commander recommended the Applicant be administrati vely discharged. However, the b attalion commander overruled him because of the seriousness of the cocaine distribution charge since t here is no known link between drug distribution and PTSD. The record of his appeal showed the Applicant was hospitalized for four days in September of 2008 (po st- discharge from the USMC) in the Brockton, MA , Department of Veterans Affairs (VA) h ospital for suicidal ideations . H is diagnosis by the VA mental health staff was anxiety and not PTSD. While on active duty, t he Applicant was seen routinely by mental health professionals. H owever, h e did not make recommended follow-on appointments. He was prescribed Zoloft for depression and was offered opportunities to attend rehabilitation for his drug addiction , which he refused. The Applicant chose not to take advantage of medical help offered by m ilitary medical officers. The Applicant provided no evidence to support his claim that t he military did not offer him proper medical care f o r his drug addiction or his actions were the direct result of PTSD. In view of the above fac ts, the NDRB did not find relief 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 BAD CONDUCT 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 , 3 April 2009 . 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 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 Disable d American 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 their 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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