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USMC | DRB | 2009_Marine | MD0901863
Original file (MD0901863.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090617
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)       20051130 - 20051211     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20051212     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080722      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 11 D a y ( s )
Education Level:        AFQT: 57
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle WITH BRONZE SERVICE STAR

Periods of UA :

NJP:

- 20070917 :      Article (UA 0730-1500, 20070904)
         Article 92 (Disobey lawful order), 2 specifications
          Specification 1: Willfully disobeyed SSgt by not reporting back to him after medical appointment
         Specification 2: Willfully disobeyed SSgt not to depart on liberty
         Article 134 (Incapacitated for duty by overindulgence in intoxicating liquor)
          Awarded: Suspended:

- 20071213 :      Article (Failure to obey order or regulation), 2 specifications        
         Specification 1: Violate the Battalion Policy by consuming alcohol within 8 hours of reporting for duty.
         Specification 2: Violate the direct order by Battalion Medical staff by consuming hard liquor while taking the following prescription medications: Oxycotin, Ambien, and Percocet.
          Article (Disorderly conduct), 2 specifications
         Specification 1: While intoxicated, caused a domestic disturbance, when he entered unauthorized into another Marines room.
         Specification 2: Trespass into the room of another Marine.
          Awarded : Susp ended:

SCM:

- 20080 1 07 :       Art icle (Drugs -cocaine)
         Sentence : RIR (20080 1 07-20080 1 30, 24 days)
         CA Action: Sentence is approved and will be executed; however forfe iture is suspended for 6 months unless sooner vacated.
- 20080507 :       Art icle (Drugs - marijuana )
         Sentence : RIR (20080507-20080530, 24 days) EPD

SPCM:

CC:

Retention Warning Counseling :

- 20080206 :       For illegal drug involvement, cocaine usage identified through self admission on a written statement used in a summary court martial in regards to an incident on 20071125.

- 20080430 :       For illegal drug involvement, THC drug use identified through urinalysis, confirmed by NDSL JAX.
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.       Pain from wounds required medication. When medication was not provided, sought relief through illegal drugs.
2.       2 nd Lt presided over summary court-martial. Applicant believes he was not competent to preside.
3. Applicant was not provided legal counsel.

Decision


 Date: 20 10 0930            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. The Applicant’s record of service included 6105 counseling warnings, for o f the Uniform Code of Military Justice (UCMJ): Article ( Unauthorized absence, ), Article ( Disobey lawful order, ), and Article ( Incapacitated for duty by overindulgence in intoxicating liquor and disorderly conduct , ); and for of the UCMJ: Article ( Drugs-cocaine and Drugs-marijuana , ). The Applicant a pre-service drug waiver for using marijuana prior to entering the Marine Corps. Acknowledgement of complete understanding of the Marine Corps Policy Con cerning Illegal Use of Drugs was not found in the record . Based on the Article 112a violation , processing for administ rative separation is mandatory. When notified of a dministrative separation processing , the Applicant rights to consult with a qualified coun sel, submit a written statement , and request an administrative board.

: (Decisional) ( ) . The Applicant contends p ain from his wounds , received in combat in Iraq, required medication. When proper medication was not provided in a timely manner , the Applicant sought relief of his physical pain through the use of illegal drugs. The NDRB requested and was unable to obtain the Applicant’s medical record. There is no evidence in the Applicant’s service record to indicate he was not provided adequate medical care for pain management. There is no record the Applicant u sed his chain of command to seek further treatment for pain management. The Applicant did not provide any documentation to substantiate his contention. The record shows the Applicant used illegal drugs in a recreational, “party” environment after a night of dancing and drinking alcohol in Nov ember 2007, not in an attempt to manage pain from wounds.

: (Decisional) ( ) . A 2 nd Lt presided over the Applicant’s summary court-martial on 7 May 2008 . The Applicant contends the 2 nd Lt was not competent to preside due to inexperience. While the Applicant may believe a 2 nd Lt lacks the experience necessary to conduct a summary court-martial, as a commissioned officer in the United States Marine Corps, a 2 nd Lt is authorized to do so. In the Applicant’s specific case, a 2 nd Lt was properly appointed by the battalion commander to conduct the summary court-martial , reflecting the commander’s confidence in the ability and experience of this particular officer. The Applicant’s issue is without merit. Relief denied.

: (Decisional) ( ) . Applicant was not provided legal counsel. The Applicant was given an opportunity to seek legal counsel d uring separation proceedings and during all courts-martial proceedings. However, h e chose to waive his right s to legal couns el during separation. The record shows the Applicant was properly advised and given ample opportunity to seek legal counsel. The Applicant’s issue is without merit. Relief denied.

The Applicant did not seek relief based on post - traumatic stress disorder (PTSD). However, in examining the record, the NDRB found evidence PTSD may have been a factor in his misconduct. The NDRB found the Applicant had performed well and had no misconduct prior to his deployment to Iraq and subsequent wounding . While in Iraq, the Applicant suffered four life - threatening gunshot wounds and two fragmentation wounds during the April 2007 battle for Fal l ujah. After careful consideration of the nature of the misconduct, available evidence and consultation with the NDRB’s senior medical advisor, the NDRB determined PTSD, while not an excuse for the misconduct, was a mitigating factor in the Applicant’s case. An upgrade is warranted on equitable grounds.

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 .


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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