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USMC | DRB | 2010_Marine | MD1000413
Original file (MD1000413.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20091030
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN ;
spcmsono 07-0512 DTD 20070424

Applicant’s Request:      Characterization change to:
         Narrative Reason change to:

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       20020506 - 20020609     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20020610     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070515      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 17 D a y ( s )
Education Level:        AFQT: 51
MOS: 0151
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF : 20040720 - 20040908 (confinement, 49 days)

NJP:     SCM:

SPCM:

- 20040720 :       Art icle ( Failure to obey order , regulation, underage drinking, o/o 200 4 030 7)
         Art icle (Wrongful use of controlled substance), 2 specifications
                  Specification 1: Wrongful use of methamphetamine, b/w 20040225 - 20040302
                   Specification 2: Wrongful use of methamphetamine, b/w 20040416 - 20040430
          Art icle (Assault upon noncommissioned officer, o/ o 20040307)
         Art icle (Drunk and disorderly, o/o 20040307)

         Sentence : ( 60 days )

CC:

Retention Warning Counseling :

- 20031008 :       For your conduct, specifically for going out of the prescribed liberty boundaries and failure to be at your appointed place of duty. Over the weekend of October 4 and 5 , 2003, you went out of the designated liberty boundaries of 300 miles for weekend liberty by going to San Francisco, California. Furthermore you were directed by SSgt A to help assist Command Platoon with work, you did so ineffectively, and were sent back to your Administrative Section to assume your regular duties. Instead of going to your appointed place of duty and after Cpl W searched for you, you were caught by SSgt A in the Maintenance Motor T section doing nothing with no attempt to inform your immediate supervisor of your whereabouts. (rebuttal statement submitted by Applicant, 2003 1015 )

- 20031210 :       For being UA to a 1300 formation held by the Co GySgt. You were told by Cpl W to return from lunch by 1245 for the formation. You did not show up to formation until 1310, 25 minutes after Cpl W instructed you to be back. Upon questioning your reason for being late you responded b y telling Cpl W that the ADNCO did not wake you up. This is not the first time your lack of responsibility and time management has gotten you in trouble. You have been counseled on several occasions concerning your showing up late to numerous formations. This type of action is not tolerated in the Marine Corps.

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 :        

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 .

D . The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article s 92 , 112a, and 128 .



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

Applicant’s Issues

 1 .       Applicant contends his youth and immaturity contributed to the decisions that led to his miscon duct and separation.
2.       Applicant contends his discharge was too harsh sin c e his misconduct was a result of untreated PTSD and the change in USMC policy toward PTSD in 2007-2008 .
3.       Applicant contends his commendable service in Iraq makes his Bad Conduct d ischarge inequitable.
4.       Applicant contends his post-service achievements are indicative of his true character.

Decision

Date: 20 1 1 0113            Location: Washington D.C .         R epresentation : Swords to plowshares

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. 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. 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 identif ied four decisional issues for the Board’s consideration . T he Board complete d a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent sta ndards of equity and propriety. The Applicant’s record of service included 6105 counseling warnings and for of the UCMJ: Article 92 (Failure to o bey order, regulation, underage drinking on 7 Mar 200 4 ); Article 112a (Wrongful use , possession, etc of controlled substance, 2 specifications: use of methamphetamine b/w 25 Feb-02 Mar 2004, use of methamphetamine b/w 16-30 Apr 2004) ; Article 128 (Assault upon noncommissioned officer, 7 Mar 2004); and Article 134 ( Drunk and disorderly , 7 Mar 2004 ). The record also reflected the Applicant acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 1 May 2002 during his processing for enlistment in to the Marine Corps . At a minimum, a violation of UCMJ Article 112a requires mandatory processing for administrative separation per the guidance set forth in the Marine Corps Separation and Retirement Manual (MARCORSPEMAN) . Based on the offense s committed by the Applicant, command chose to refer charges on him for trial by S pecial C ourt- M artial instead of processing him for administrative separation .
: (Decisional) ( ) . The Applicant contends his youth and immaturity contributed to the decisions that led to his misconduct and separation. The NDRB determined that the Applicant's youth or age was not a mitigating factor in his misconduct . While he may feel this was the underlying cause of his misconduct, the record , to include the record of trial transcripts from his Special Court-Martial, clearly reflects his misconduct was willful and demonstrated he was unfit for further service. The NDRB recognizes that serving in the U.S. Marine Corps is challenging , especially in time of war . However, members of the Naval Service are expected to maintain the established high standards of conduct, exemplified in the Core Values of Honor, Courage , and Commitment, regardless of the mission or environment in which we operate. When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under H onorable conditions. The Applicant’s conduct, which includes two separate incidents of illegal drug use, forms the primary basis for determining the character of service and reflects the Applicant failed to meet the requirements of conduct expected of all Marines , regardless of grade or length of service , and falls short of what is required for a clemency upgrade .

: (Decisional) ( ) . The Applicant contends his discharge was too harsh sin c e his misconduct was a result of untreated PTSD and the change in USMC policy toward PTSD in 2007-2008 . The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. After careful examination of the service and medical records, to include post-deployment health assessment and separation physical documentation, t he NDRB noted the Applicant had not been diagnosed with PTSD prior to his separation from service. In fact, he was screened for PTSD during an evaluation by a staff psychiatrist from the naval hospital mental health department on 26 Aug 2004. In the medical report, the Applicant complain ed of displaced anger, feeling on edge, getting mad easily, having troubles with his girlfriend, reduced sleep, low self-esteem, inability to concentrate, and having bad dreams related to his experiences in Iraq. The Assessment portion of the medical report lists: “ AXIS I-Rule Out PTSD ; AXIS II-deferred ; AXIS III-ankle pain and abdominal discomfort ; AXIS IV-Problems with Primary Support and Legal System ; AXIS V-61-70 . ” The Applicant was prescribed Zoloft; assigned a licensed clinical social worker to continue follow-on counseling for “tolerance of re-experiencing combat”; scheduled for a follow-up exam with the staff psychiatrist (4 weeks later); and found to be “responsible for actions and there is no indication of impaired mental capacity” and “fit and suitable for continued confinement . ” On 27 Sep 2004, the Applicant’s final separation physical was completed with no mention of continuing mental health issues or PTSD diagnosis.

Notwithstanding, the Board did recognize that as time passed since the Applicant’s separation from service more evidence came to light that led to his post-service diagnosis as exhibiting symptoms of PTSD . This evidence included: th e Applicant’s pre-combat deployment record of service , though relatively short (finished MOS school , checked into first Fleet Marine Force unit in Nov 2002 and then deployed in Jan 2003), lack ed misconduct prior to combat deployment and clearly contrasts with his significant misconduct after return from combat deployment ; the Applicant’s family member observations and statements regarding his post-combat deployment behavior ; the LMFT evaluation report on the Applicant ( dated 14 Aug 2009) ; and the Department of Veteran Affairs (DVA) D ecision Letter ( dated 18 Jan 2010) that reflected a diagnosis of service - connected , combat - related PTSD.

Though the Applicant feel s untreated PTSD was the underlying cause of his misconduct, the record clearly reflects his conduct was willful and demonstrated he was unfit for further service. In the record of trial from his Special Court - Martial, the Applicant was thoroughly questioned by the military judge regarding his tour of service in Kuwait and Iraq, his personal experiences during combat operations in Iraq, and the specific circumstances surrounding each incident of misconduct for which he was charged to determine if PTSD may have had an effect on the Applicant’s mental state and/or decision making processes . When questioned why he chose to wrongful ly use methamphetamine on the first occasion, he stated that he had just met a girl who had the drug s and she told him if he took the drug it would make him “horny and stay aroused longer . ” He stated he knew taking methamphetamine was wrong, but he decided to do it because he wanted to get “intimate with her . ” When questioned about the second instance of taking methamphetamine, the Applicant stated he was “demotivated” from the first illegal drug incident due to pending legal actions from his command and that “he just didn’t care . ” He stated he gave $20 to an acquaintance who had claimed he had “better drugs” and that he took the methamphetamine since if he was going “to get kicked out, get kicked out for a reason, basically.” After thorough questioning, the military judged determined the Applicant’s misconduct to be willful and found him guilty of all ch arges.

After a thorough review of all the available evidence, to include statements made under oath by the Applicant to a military judge, the Board found that the Applicant was responsible for his actions and that PTSD was not a mitigating factor for his misconduct . The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions .

: (Decisional) ( ) . The Applicant contends his commendable service in Iraq makes his Bad Conduct d ischarge inequitable . The Board is acutely aware of the combat - related experiences and environment in which the Applicant served. The effects of the rigors of military service combined with the fear, uncertainty, stress, and constant dangers encountered when conducting combat operations cannot be overstated. The Applicant’s faithful service during combat operation s is fully noted and recognized. Nevertheless, all members of the Naval Service are expected to uphold the high standards of conduct , as e xemplified by our Core Values of Honor, Courage, and Commitment , regardless of the mission or environment in which we are called to serve. The contention that “ combat service leads one down the path to drugs and alcohol” is acutely erroneous and misrepresentative. Since the early founding of this country’s Armed Forces, our Marines, Sailors, Soldiers, and Airmen have conducted themselves valiantly when our Nation has called upon them to go into harm’s way and fight. The vast majority have done so and then continued to serve with honorable service , or returned to civilian life and continued therein as honorable, respected members of their local communities . To opine otherwise is discrediting to those many who have maintained the high standards of conduct expected of members of the Armed Forces. Th e Board determined this issue to be without merit and did not provide a basis for which relief could be granted.

Issue 4: (Decisional) ( ) . The Applicant contends his post-service achievements are indicative of his true character . The NDRB considers post-service conduct in order to determine if the misconduct committed during active duty was indicative of the Applicant's character or an aberration. However, there is no law or regulation that provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. 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 .

The Applicant claims his post-service achievements include: full time enrollment at a local city college ; part-time employment with a catering company ; no civil authority involvement since release from second incarceration after release from military service ; and volunteer work with a veterans ’ organization. The Applicant provide d a city college enrollment confirmation/ class schedule printout in support of his post-service achievement claim. Though not submitted, additional documentation could have included: ; ; letters(s) of personal reference; ; evidence of a drug-free life style; evidence of financial stability; certification of non-involvement with civil authorities; college and/or vocational school transcripts; documentation of community or church service; and marriage or child birth certificates (as applicable). After considering all the available documentary evidence, the Board determined th is issue did not provide a basis for which relief could be granted.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and punitive 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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