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USMC | DRB | 2010_Marine | MD1001238
Original file (MD1001238.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20100407
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)       20050729 - 20060514     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20060515     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20090619      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 5 D a y ( s )
Education Level:        AFQT: 73
MOS: 0811
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle ACM (w/1 bronze service star) Medal-ISAF Afghanistan

Periods of CONF : 20090312 - 20090404 (24)

NJP:

SCM:
- 20090312 :       Art icle ( Wrongful use, possession, etc., of control substances – THC 233 ng/ml)
         Sentence : Susp ended:

SPCM: CC:

Retention Warning Counseling :
        
         - 20090312: For UCMJ Article 112a violation.

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.       The Applicant contends that his misconduct was the result of Post-Traumatic Stress Disorder (PTSD), which mitigates his misconduct and should be considered in upgrading his characterization of service of Honorable.

Decision

Date: 20 1 1 0 512            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. T he Board did complete 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 warning and for of the UCMJ: Article ( Wrongful use, possession, etc., of control substances – THC 233 ng/ml ). 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 28 J uly 2005 . Based on the Article 112a violation , processing for administ rative separation is mandatory. When notified of a dministrative separation processing using the procedure, the Applicant right to consult with a qualified coun sel, but waived his rights to submit a written statement to request an administrative board .

The Applicant’s record of service clearly identifies him as a combat veteran, having served one deployment in Afghanistan in support of Operation Enduring F reedom . The Applicant served as a Humvee Machine Gunner and a Field Artillery Cannoneer.

The Applicant provided copies of his Department of Veterans Affairs Claims Folder, which included copies of his medical and service records. In addition, the Applicant also provided three letters of reference.

: (Decisional) ( ) . The Applicant contends his misconduct was the result of Post-Traumatic Stress Disorder (PTSD), which mitigates his misconduct and should be considered in upgrading his characterization of service t o Honorable. The NDRB conducted a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety. The Applicant was recommended for administrative separation based on a notification of Misconduct (Drug Abuse) regarding his violation of Article 112a , pursuant to his violation of the Marine Corps Policy on drugs as evidenced by the Summary Court-Martial for the illegal use of a controlled substance, marijuana. Despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Naval service in order to maintain proper order and discipline. Violation of Article 112a is one such offense requiring mandatory processing for administrative separation on the first offense , regardless of grade or time in service. This action usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge with the possibility of confinement if adjudicated and awarded as part of a sentence by a Special or General Court-Martial. The command did not opt to pursue a punitive discharge, but instead, chose the more lenient administrative discharge process. On 5 June 2009, the Separation Authority approved the command’s recommendation for separation and directed the Applicant be discharged U nder O ther T han H onorable C onditions for Misconduct due to drug abuse pursuant to paragraph 6210.5 of the Marine Corps Separation and Retirement Manual. T he Applicant was discharged on 19 June 2009. The NDRB determined that the separation was proper and the narrative reason for separation was accurate. A change would be inappropriate. Accordingly, on the propriety issue, relief denied.



The Applicant contends that PTSD caused him to “self-medicate ” with marijuana . On 11 June 2009 , a therapist at the Deployment Health Center aboard Camp Lejeune stated in a memo to the VA that “[Applicant] is diagnosed with Post-Traumatic Stress Disorder and Panic Disorder without Agoraphobia, due to experience of several traumatic events during the course of one combat deployment to Afghanistan in 2008.” It is unclear where this diagnosis came from as there is no diagnosis by a credentialed health provider in the Applicant’s medical records. In the same memo, it states that “this service member see s Dr. V_ for medication management, and has been seeing him since February 2009,” thus suggesting that the Applicant was seeking medical help for his post-deployment symptoms.

Despite seeing a physician for medication management, the Applicant used an illegal drug and violated UCMJ Article 112a. While he may feel that PTSD was the underlying cause of his misconduct, marijuana use is not a rationale or acceptable excuse for inappropriate conduct or poor judgment. Characterization of service at discharge is the recognition of a Marine’s performance and conduct during a period of enlistment and is not necessarily dependent upon the narrative reason for separation. When the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under Honorable conditions. An Under Other Than Honorable Conditions discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval service. The NDRB determined the Applicant’s conduct, which forms the primary basis for determining the character of service, reflected acts that were a significant departure from the conduct expected of a service member and the awarded characterization, as issued, was appropriate and was equitable. Accordingly, relief denied.

The U.S. Department of Veterans Affairs has announced special access to combat veterans discharged under other than dishonorable conditions. The VA determines the eligibility for enrollment independent of the Applicant’s characterization of service as determined by the Marine Corps. Effective 28 January 2008, combat veterans discharged from active duty on or after 28 January 2003 are eligible for combat-veteran enhanced eligibility and enrollment placement into Priority Group 6 (unless eligible for higher enrollment Priority Group placement) for five years after discharge. The Applicant, as a combat veteran, is encouraged to contact the VA for more information at http://www4.va.gov/healtheligibility/Library/pubs/CombatVet/CombatVet.pdf or 1-877-222-VETS (8387).
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 for additional information.


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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