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USMC | DRB | 2010_Marine | MD1000069
Original file (MD1000069.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20091008
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)       20040823 - 20050418     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20050419     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070418      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 00 D a y ( s )
Education Level:        AFQT: 80
MOS: 0331
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle Pistol

Periods of UA / CONF :

NJP:

- 20060504 :      Article (Sleeping on post)
         Awarded: Suspended:

- 20070202 :      Article (Drugs - cocaine 379 ng/ml)
         Awarded: Suspended:

SCM: SPCM:

CC:

Retention Warning Counseling :

- 20070103 :       For my illegal drug involvement and positive urinalysis.

- 20070118 :       For my illegal drug involvement - cocaine as identified through urinalysis and confirmed by NAVDRUGLAB San Diego message F0163158.

- 20070129 :       Eligible but not recommended for promotion to Corporal for the February 20 07 promotion period due to lack of judgment.

- 20070208 :       For my illegal drug involvement.

- 20070220 :       Eligible but not recommended for promotion to Lance Corporal for the March 2007 promotion period due to lack of judgment and NJP.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

          “ UNDER OTHER THAN HONORABLE CONDITIONS ”

The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.
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:           Rehabilitation/Treatment:                  Criminal Records:       
         Personal Documentation :           Community Service:                References:     
         Department of VA letter:                  Oth er Documentation:    
                  Additional Statements :
         From Applicant:            From /To Representation:            From /To Congress m ember :        




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

Applicant’s Issues

 1. Suffering from post-traumatic stress disorder (PTSD) since returning from Iraq.
2. H as not been in any trouble with the justice system since discharge .

Decision

 Date: 20 10 0902            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 five 6105 counseling warnings and two nonjudicial punishments (NJPs) for violations o f the Uniform Code of Military Justice (UCMJ): Article 134 ( Sleeping on post while assigned to a security post for his platoon’s patrol base at Check Point 40A in Abu Ghraib, Iraq) and Article 112a (Wrongful use of controlled substances, cocaine, 379 ng/ml). The Applicant a pre-service drug waiver for using marijuana three times prior to entering the Marine Corps acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 22 August 2004 . Based on the Article 112a violation , processing for administ rative separation is mandatory. When notified of a dministrative separation processing using the administrative board procedure, the Applicant his rights to consult with a qualified coun sel and request an administrative board , and elected to submit a written statement.
Issue 1 : (Decisional) ( ) . The Applicant contend s he is suffering from PTSD since returning from Iraq and has not been able to receive medical treatment from the U.S. Department of Veterans Affairs (VA) . The NDRB found no documentary evidence, nor did the Applicant provide any, to indicate he was diagnosed with PTSD while in the service. In the Applicant’s Report of Medical History for separation, dated 12 February 2007, the physician made no reference to PTSD. The physician stated the Applicant had been in a motor vehicle accident on 16 January 2007, in which he suffered a concussion and is having daily headaches and weekly dizzy spells. The Applicant also had mild anxiety symptoms but denies current nightmares, flashbacks, hyperalertness , and avoidance, and did not meet the criteria for major depressive disorder. The Applicant rejected the opportunity to be evaluated for PTSD on 14 March 2007, and did not provide any post-service medical documentation to support his having P TSD. The NDRB determined the Applicant’s PTSD was not a mitigating factor in his misconduct.

E ffective Jan. 28, 2008, combat veterans discharged from active duty on or after Jan. 28, 2003, are eligible for combat veteran enhanced eligibility and enrollment placement into Priority Group 6 (unless eligible for higher enrollment Priority Group placement) for 5 years post discharge. The Applicant, as a combat veteran, is encouraged to contact the U.S. Department of Veterans Affairs for more information. VA’s website: http://www1.va.gov/opa/Is1/1.asp or phone: 1-877-222-VETS (8387).
Issue 2: (Decisional) ( ) . The Applicant contends he has not been in any trouble with the justice system since discharge. The NDRB considers 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. Besides the Applicant’s statement on the DD Form 293 and a statement from his great-grand mother, he failed to provide any post-service documentary evidence to form a basis of relief. The Applicant could have provided documentation that could include but is not limited to: letters of personal reference ; verifiable employment record s; letters of recommendation from employers; evidence of a drug-free life style (completion of rehabilitation or proof of attendance at Narcotics Anonymous or Alcoholics Anonymous meetings); certification of non-involvement with civil authorities; evidence of financial stability (mortgage or home rental history, credit score, credit card payments); college transcripts; documentation of community or church service; and if married, a marriage certificate. The Applicant should be aware submission of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the NDRB on a case-by-case basis.

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 remain 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 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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