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USMC | DRB | 2010_Marine | MD1000549
Original file (MD1000549.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request
Application Received: 20091203
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)       2006022 7 - 20060327     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20060328     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080414      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 27 D a y ( s )
Education Level:        AFQT: 47
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:

- 20080129 :      Article (Wrongful use, possessio n, etc , cocaine 178 ng/ml ), 1 Jan 2008
         Awarded : Susp ended:

SCM:

SPCM:

CC:

Retention Warning Counseling :

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 :        

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.       Applicant contends his drug abuse misconduct was self-medication to alleviate PTSD and TBI symptoms.
2.       Applicant contends his discharge was inequitable due to combat caused medical injuries he sustained.
3.       Applicant seeks upgrade based on total record of service to include his performance during OIF combat operations.

Decision

Date : 20 1 1 0210            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 identif ied three 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 standards of equity and propriety. The Applicant’s record of service did not contain any 6105 retention counseling warnings but did include for o f the Uniform Code of Military Justice (UCMJ): Article ( Wrongful use, possession, e t c of controlled substance, cocaine 178 ng/ml, as evidenced in NAVDRUGLAB msg dated 17 Jan 2008 ) . The Applicant a pre-service drug waiver for using marijuana prior to entering the Marine Corps acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 24 Feb 2006 . Based on the Article 112a violation , processing for administ rative separation is mandatory. When notified of a dministrative separation processing using the procedure on 4 Feb 2008 , the Applicant exercised his right to consult with qualified counsel, but rights to submit a written statement and request an administrative separation board (the administrative separation board was previously waived by the Applicant in his 18 Jan 2008 request to the Commanding Officer for disposition of his UCMJ Article 112A violation in which he agreed to waive his right to an admin board in exchange for the command limiting prosecution of his case to NJP or trial by Summary Court-Martial).

The Applicant provided documentation that included: Traumatic Brain Injury Screening Report (Aug 2008), Mental Health E valuation s (Oct 2009, Nov 2009) , and Decision Letter documentation (Feb 2010, May 2010) from the Department of Veteran s Affairs .

: (Decisional) ( ) . The Applicant contends his drug abuse misconduct was self-medication to alleviate PTSD and TBI symptoms. The Applicant’s service records indicate he deployed to Iraq with Second Marine Division from March through September 2007. During this deployment , he experienced two incidents in which he bumped his head (falling down a hill and hitting his head on a metal bar inside a military truck), but the records do not indicate any significant medical diagnosis/treatment or subsequent health issues related to these incidents. Approximately four months after his return from Iraq, o n 7 Jan 2008, he participated in a command urinalysis and subsequently tested positive for cocaine with a level of 178 ng/ml (NAVDRUGLAB msg dated 17 Jan 2008). The Board examined the Applicant’s medical record s contain ing three post-depl o yment he al th assessments (PDHA) , which occurred just prior to redeployment from Iraq (Aug 2007), four months after his return (Jan 2008), and six months after his return (Mar 2008). In the Aug 2007 PDHA ( while still deployed ) , the Applicant noted he had some nightmares relating to his experiences in Iraq and had answered “ yes ” to questions on whether he experienced danger, heightened alert, weapon use in combat, and dead enemy personnel. He stated that he did not desire follow-up care for stress, family/relationship, alcohol or mental health issues. In the Jan 2008 PDHA, the Applicant noted he had no stress or significant health concerns, but he did state his desire to reduce his alcohol consumption , which he felt was greater than it should be. Two months later (Mar 2008) during his final PDHA and pre-separation physical, the Applicant stated he had no physical or other problems and that he had no intent to file for veteran’s disability. The physician found him fit for separation with no requirement for follow-on evaluation or treatment. After review of the Applicant’s records, the Board could not find any evidence of PTSD screening or counseling subsequent to his return from

deployment nor prior to his separation from the Marine Corps. In the documentation submitted to the Board, the Applicant provided Department of Veteran s Affairs Traumatic Brain Injury Screening and Mental Health Evaluation Decision Letters (Oct 2008, Nov 2009) , which stated the Applicant suffered no long - term effects (residuals) related to his head injuries, but the Applicant was determined to be 100% disabl ed due to the effects of PTSD.

 In reviewing discharges, t he G overnment 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 , credible evidence to support their issue. The NDRB thoroughly examined the Applicant’s record of service and found no documented evidence of misconduct, counseling warnings , or medical evaluations that would support his claim that he suffered from the effects of PTSD after his return from Iraq. Not until the N ew Y ears holi day (on or about 1 January 2008) did the Applicant stray away from the standards of conduct expected of all members of the N aval service by using an illegal drug, cocaine. 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 . Other than mentioning his desire to reduce his alcohol consumption on his Jan 2008 PDHA, there is no evidence to show that the Applicant was dealing with any significant problems or that he was seeking help from on-base or other resources to deal with problems. Additionally , the Applicant’s record of service indicates he was authorized to enlist in the Marine Corps only after receiving a waiver for illegal use of marijuana prior to entry in Mar 2006. A fter careful consideration of all the facts and circumstances surrounding the Applicant’s discharge, to include the evidence submitted by the Applicant, the Board determined that the Applicant ’s discharge was proper and equitable at the time of his discharge. Though it is possible and even probable that the Applicant could have been suffering from early effects of PTSD prior to his separation, especially considering that established PTSD screening policies were not in place across the Navy and Marine Corps at the time, the fact remains that the Applicant conducted serious misconduct when he chose to illegally use cocaine. Therefore, the Board determined this issue did not provide a basis for which relief could be granted. Relief d enied.

: (Decisional) ( ) . The Applicant contends his discharge was inequitable due to combat caused medical injuries he sustained. The Applicant’s service records indicate he deployed to Iraq with Second Marine Division from March through September 2007. During this deployment he experienced two incidents in which he bumped his head (falling down a hill and hitting his head on a metal bar inside a military truck), but the records do not indicate any significant medical diagnosis/treatment or subsequent health issues related to these incidents. The Board examined the Applicant’s medical records , which contained three post-deployment health assessments. In the Aug 2007 PDHA (while still deployed), the Applicant noted he had some nightmares relating to his experiences in Iraq and had answered “ yes ” to questions on whether he experienced danger, heightened alert, weapon use in combat, and experiencing dead enemy personnel. He stated that he did not desire follow-up care for stress, family/relationship, alcohol or mental health issues. In the Jan 2008 PDHA, the Applicant noted he had no stress or significant health concerns, but he did state his desire to reduce his alcohol consumption , which he felt was greater than it should be. Two months later (Mar 2008) during his final PDHA and pre-separation physical, the Applicant stated he had no physical or other problems and that he had no intent to file for veteran’s disability. The physician found him fit for separation with no requirement for follow-on evaluation or treatment. In the documentation submitted to the Board, the Applicant provided Department of Veteran s Affairs Traumatic Brain Injury Screening and Mental Health Evaluation Decision Letters (Oct 2008, Nov 2009) , which stated the Applicant suffered no long-term effects related to his head injuries, but the Applicant was determined to be 100% disabled due to the effects of PTSD.
Though no significant medical or mental health issues were evident at the time of his separation, and even if combat or other service-related medical issues did exist, DoD disability regulations do not preclude a disciplinary separation , which was the basis for which the Applicant was separated from service (Misconduct - Drug Abuse) . Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. 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 B oard for Correction of Naval Records can grant this type of narrative reason change . Relief d enied.

 : (Decisional) ( ) . The Applicant seeks an upgrade based on total record of service to include his performance during OIF combat operations. The Board conducted a detailed review of the Applicant’s record of service , which indicated an in-service proficiency and conduct (pro/con) marks average of 4.2 and 3 . 8 , which is considered well-below ave rage for conduct and not normally eligible for characterization of service as Honorable . Additionally, it was noted that the Applicant was the subject of an unspecified incident of misconduct in boot camp that resulted in him receiv ing below average pro/con marks of 4.0/4.0 upon graduation. After consideration of his complete service record , to include his performance in combat operations in Iraq and the documentation submitted by the Applicant, the fact remains that he deliberately chose to violate the Marine Corps Policy on Illegal Drug U se by using cocaine . Therefore, the Board found this issue did not provide a basis for which relief could be granted . Relief d enied.

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