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USMC | DRB | 2009_Marine | MD0901751
Original file (MD0901751.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090605
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)       20030414 - 20030616     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20030617     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070912      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 27 D a y ( s )
Education Level:        AFQT: 53
MOS: 0621
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:
Awards and Decorations ( per DD 214):      Rifle (2) (IRAQ)

NJP: SCM:

SPCM:

- 20050304 :      Article (UA on or about 20041201 – 20041208, 8 days)
         Article (Drugs – methamphetamine), 5 specifications
         Specification 1: On or about 20041008 and 20041108 wrongfully use.
         Specification 2: On or about 20041110 wrongfully distribute.
         Specification 3: On or about 20041119 wrongfully distribute.
         Specification 4: On or about 20041208 and 20041108 wrongfully possess.
         Specification 5: On or about 20041208 and 20041108 wrongfully distribute.
          Sentence : BCD 10 months ( 20041209 – 20050821, 256 days)
         CA’s Action: Accused credited 86 days confinement against sentence to confinement.
CC: 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 :     


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

Applicant’s Issues

 1. Diagnosed with post-traumatic stress disorder (PTSD), depression and anxiety and not able to get work, and does not have insurance.

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 g overnment al a ffairs 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 special court-martial (SPCM) for of the UCMJ : Article 86 ( Absence without leave, 1 specification: 8 days , apprehended ) and Article 112a (Wrongful use, possession, distribution of controlled substances, 5 specifications for methamphetamine: wrongfully use- 1x, wrongfully distribute - 3x , and wrongfully possess- 1x). The Applicant did not require a pre-service drug waiver prior to entering the Marine Corps . The Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 2 April 2003. Based on the offense s committed by the Applicant, his command convened a SPCM. The Applicant pled and wa s found guilty of all charges (except for use of amphetamine) , and sentenced to 10 months in confinement and a Bad Conduct discharge.

Issue 1 : (Decisional) ( ) . The Applicant contends he was diagnosed with PTSD, depression and anxiety and not able to get work, and does not have insurance. The Applicant’s parents stated that the Applicant was diagnosed with severe PTSD while in jail, and the Marines did not offer any help or treatment for his mental anguish and anger problems, aside from the medication given to him while in the brig. The parents further state d the Applicant has had bad nightmares over the past few years and a bad temper. Some of the events that contributed to the Applicant’s PTSD were one of hi s close friends was shot in the head right next to him, and another friend , who took the Applicant’s place on an escort detail mission when he was sick, was k illed on that mission. The NDRB could not determine when the Applicant was first diagnosed with PTSD, but from the chronological record of medical care (CRMC) dated 24 March 2005, the Applicant was diagnosed with PTSD and methamphetamine abuse, and suffered grief due to a friend’s death in Iraq. It also stated he had used cocaine, marijuana, and ecstasy. In the CRMC dated 14 April 2005, it stated he had a history of hypertension and PTSD, which were controlled with medications. The report of medical history for separation signed by a doctor on 22 August 2005 indicated the Applicant had no acute complaints; this report also stated the Appli cant’s current medication were V istiral (for anxiety and tension) and C elexa (an antidepressant). On the Applicant’s post deployment health assessment dated 15 September 2004, he marked “no” to the following questions: Q7: Did you see anyone wounded, killed or dead during this deployment?” Q9: During this deployment, did you ever feel that you were in great danger of being killed? Q12: Have you ever had any experience that was so frightening, horrible, or upsett ing that, IN THE PAST MONTH? Q17: Were you in or did you enter or closely inspect any destroyed military vehicles?” In the record of trial for the SPCM, the Applicant was asked what he had hoped to accomplish from the use of methamphetamine and he responded, “I wanted to get intoxicated, sir. ” In his closing remarks, the defense counsel identified several mitigating factors that included : the Applicant’s misconduct was isolated to a one-month period; and the Applicant had volunteered to serve his country; combat service; been meritorio usly promoted in boot camp; that he pled guilty; previously had a cl ean service record book; and earned positive spot prisoner evaluations . However, there was no mention of the Applicant’s PTSD or mental condition anywhere in his court-martial record of trial . His defense attorney did not bring up PTSD as a mitigation circumstance regarding his misconduct. Besides his statement on his DD Form 293 and his parents’ statement, the Applicant provided no documentation to support the severity of his PTSD after discharge. After a careful review of t he Applicant’s case under the pertinent standards of equity to determine if any factors in this particular case merited clemency , the NDRB determined the Applicant’s PTSD, depression and anxiety were not mitigating factors in his misconduct especially relating to the multiple methamphetamine distribution charges , and that the re ason for discharge, convicted by spe cial court-martial, was appropriate.

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. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, 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 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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