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USMC | DRB | 2010_Marine | MD1001326
Original file (MD1001326.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20100430
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:         USNR (DEP)       199401XX - 19940301 COG  Active: 19940302 - 19940322 (UNCHARACTERIZED)
                           Erroneous Enlistment - (Undisclosed pre-service drugs)

          USMCR (DEP)       19980527 - 19980602     Active:   19980603 - 20020125 (HON)

Period of Service Under Review:
Date of Current Enlistment: 20020126     Age at Re-e nlistment:
Period of E nlistment : Years Months
Date of Discharge: 20051215      H ighest Rank:
Length of Service (Current Enlistment) : Y ea r ( s ) M on th ( s ) 20 D a y ( s )
Total Length of Service: Y ea r ( s ) M on th ( s ) 13 D a y ( s )
Education Level:        AFQT: 39
MOS: 0121 /0481
Proficiency/Conduct M arks (# of occasions): (2) / (2)          Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle , , ( 2 ) , , , , (2), ,

Periods of UA / CONF : / NONE

NJP:

SCM:

SPCM:
- 20050808 :      Article ( W rongful use , possession, etc of a controlled substance - 2 specifications )
                  Specification 1: Methamphetamines 2 , 346 ng/ml per NAVDRUGLAB Message R301511Z MAR 05
                  Specification 2: Methamphetamines 1 , 254 ng/ml per NAVDRUGLAB Message R031633Z MAY 05
         Sentence :

CC: Arrested
- 20051025 :       Offense: Carrying a concealed firearm, which was stolen, exhibiting that firearm in a threatening manner, and threatening bodily harm against spouse and two children.
         Sentence : Per a plea bargain, the Applicant ple d guilty to the concealed firearms charge and will be sentenced on 15 December 2005 to 180 days in County jail. [E xtracted from CO’ s comments]

Retention Warning Counseling :

- 20010928 :       For failure to make satisfactory progress pertaining to MC weight/body fat standards.

- 20050411 :       For illegal drug-related incident via NAVDRUGLAB message 301511Z Mar 05.


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. Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), 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 II, Para 211, Regularity of Government Affairs , Part V, Para 502, Propriety and Para 503, Equity .

C. 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 s of the UCMJ, Article 134 .


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

Applicant’s Issues

 1. The Applicant contends his discharge was inequitable; his misconduct of record was due to an inability to address the symptoms of his Post - Traumatic Stress Disorder (PTSD) and warrants consideration as a mitigating factor .

Decision

Date: 2011 10 19 Location: Washington D.C. R epresentation : Dept of Vet Services

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall .

Discussion

In accordance with U.S. Code, Title X, Section 1553 (d)(1), the Naval Discharge Review Board included a member who is a physician, clinical psychologist, or psychiatrist. In accordance with section 1553 (d)(2), the service secretary expedited a final decision and accorded the case sufficient priority to achieve an expedited resolution.
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 NDRB presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The NDRB complete d a thorough review of the circumstances that led to the discharge , and the discharge process , to ensure the action met the pertinent standards of equity and propriety.

The Applicant entered active duty military service at age 18 on a four-year contract with the Navy; he was discharged due to a failure to divulge a history of pre-service drug use. The Applicant re-enlisted in the Marine Corps, with waiver for his admitted drug use (Marijuana - 60 uses, cocaine - 1 use), on a contractual guarantee for training in the administration field. As a function of his request for a waiver to his pre-service drug use, the Applicant acknowledged - in writing - complete understanding of the Marine Corps Policy Concerning the Illegal Use of Drugs on 21 February 1998. He successfully completed his first enlistment period honorably and , on 26 January 2001 ( at age 26 ) , he executed an immediate reenlistment with a lateral move to the logistics field. The Applicant’s record of military service documents that he is a combat veteran, deploying with I MEF in support of combat operations in Iraq in support of Operation IRAQI FREEDOM (OIF) : January to September 2003 (Kuwait/OIF I). He completed two additional deployments to the Iraqi/Kuwait theater of operations: 2004 (30 Jan - 27 Mar; Kuwait) and 2004 (05 Aug - 16 Oct; Al-Asad, Iraq).

The Applicant’s record of service include s 6105 retention- counseling warnings throughout his service and a Special Court-Martial for o f the Uniform Code of M ilitary Justice (UCMJ ) during his current enlistment period . Specifically, the Applicant was found guilty of violating Article ( W rongful use , possession, etc o f a controlled substance - 2 specifications of m ethamphetamine use on two separate occasions). For the illegal drug use, the Applicant was referred to a trial by Special Court - Martial, held on 08 August 2005. The Applicant’s case was presented before a board of members: he was found guilty of the charges as specified and was awarded a reduction in rank to Private/E-1 and given 45 days of restriction. The panel of members addressed the mandatory processing for misconduct , specifically recommend ing retention of the Applicant until completion of his contract. As such, the Applicant returned to his command to serve his adjudged restriction and was returned to duty until his end of obligated service.

On 05 Oct 2005, the Applicant was authorized paternity leave. He failed to return to his command upon expiration of the leave period and , subsequently, was placed in an unauthorized absence status until 24 Oct when he surrendered himself to the command. Upon return from the period of unauthorized absence, the Applicant was given a mandatory urinalysis test. On 25 October 2005 , the Applicant again absented himself from his command, without authority, and remained so absent until his arrest by civilian law enforcement authorities on 26 October 2005 when r esponding to a domestic dispute involving an unregistered and concealed handgun. The Applicant was held in the hands of civilian authorities for charges of carrying a stolen concealed firearm, exhibiting that firearm in a threatening manner, and threatening bodily harm against his spouse and two children.

In accordance with a plea bargain arrangement , the Applicant ple d guilty to the concealed firearms charge and w as to be sentenced on 15 December 2005 to 180 days in the County jail. B ased on the civilian offenses committed by the Applicant, command administratively processed for separation due to Misconduct (C ommission of a S erious O ffense ) . To be noted, while processing for discharge, the command received urinalysis testing results dated 0 7 November 2005 (reference 24 Oct urinalysis test), document ing the Applicant had again tested positive for Methamphetamines - a 3 rd documented use w hile in service . When notified of administrative separation processing using the notification procedure, the Applicant exercised rights to consult with a qualified legal counsel, but waived his rights to submit a written statement for consideration by the separating authority or to request an administrative board to present his case for retention or characterization of his service .

(Decisional Issue ) ( ) . The Applicant contends his discharge was inequitable; his misconduct of record was due to an inability to address the symptoms of his PTSD and warrants consideration as a mitigating factor.

Propriety - T he NDRB completed a thorough review of the Applicant’s issues and the discharge process and determined that the discharge met the pertinent standard of propriety in accordance with paragraph 6210. 6 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) – Misconduct ( C ommission of a Serious Offense) . The Applicant’s record reflected misconduct that violated his two previous retention-counseling warnings. In accordance with paragraph 6210.6 of the MARCORSEPMAN, a Marine may be processed for separation for the commission of a serious military or civilian offense when the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same, or a closely related offense, under the UCMJ. The civilian charges in which the Applicant was pleading guilty to warranted punitive discharge and confinement in excess of 6 months , if adjudged at trial by special or general court - martial ; as such, the requirements necessary to establish the cri teria for a “Serious Offense” were met. The Applicant ’ s actions established misconduct that warranted consideration for administrative separation. The Applicant’s service record reflects that he was advised properly on the separation recommendation by his chain of command; he was afforded the opportunity to exercise his rights and acknowledged all such in writing. The Separation Authority reviewed the evidence of record and the administrative discharge board findings and concurred with the determination that a preponderance of the evidence satisfied the requirements as outlined in the applicable regulation . A ccordingly, he directed the Applicant be discharged. The NDRB determined that the evidence of record did establish the basis for discharge and that the actions were proper. Accordingly, relief based on propriety is not warranted.
Equity - The NDRB reviewed the Applicant ’s service and medical record s . The Applicant’s record documents that he was evaluated for both alcohol problems and for methamphetamine use/abuse; appropriately credentialed substance abuse and rehabilitation counselors conducted these evaluation s . While being screened by drug and alcohol counselors regarding his illegal drug use, the Applicant identified only one concern regarding a single life stressor : his pending divorce. The Applicant did not identify any concerns regarding PTSD; moreover, the A pplicant specified that his drug use was an isolated “ b ad d ecision.” He denied any dependency concerns and did not divulge any mental health concerns or symptoms related to PTSD. Since discharge, the Applicant has sought out and received treatment from the Department of Veterans Affairs (VA); subsequent to his discharge, he was diagnosed with PTSD and has been assigned a case manager to coordinate treatment and services.

 The NDRB conducted a thorough review of the Applicant’s combat deployment history , the timing and the circumstances involved in the Applicant’s incidents of misconduct, coupled with the Applicant’s post -service mental health evaluations by appropriately credentialed mental health care providers who affirmed a diagnose s of PTSD. The NDRB determined that the Applicant’s diagnosed PTSD was possibly a mitigating factor associated with his in-service misconduct. However, the NDRB does not consider PTSD as a reason to absolve completely the Applicant of his misconduct. T he Applicant was tried by a s pecial c ourt -m artial with a board of members for two documented uses of methamphetamines; the members considered the Applicant’s war - time service and all issues for mitigation that he raised in the trial (to include any PTSD concerns) . The court - martial members retained the A pplicant in the service, allowing him to complete his obligation ; he received only reduction in rank and 45 days of restriction . C harges such as these usually result in a long period of confinement and a punitive Bad Conduct Discharge. The NDRB determined that mitigation was considered and was awarded by the special court - martial member s in allowing retention and providing for no confinement . Given a second chance opportunity to correct his deficiencies, to seek help for any PTSD symptoms, and to address his drug abuse through counseling, the Applicant opted instead to continue to disregard rules and regulations through continued drug use, possession of stolen weapons, and domestic violenc e while brandishing a firearm.



In accordance with the MARCORSEPMAN, an Honorable characterization of service is warranted when the quality of a member’s service generally meets the standards of acceptable conduct and performance for N aval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. A n Under Other Than Honorable Conditions characterization of service at 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.

After a thorough review of the facts and circumstances unique to this case, the NDRB discerned no impropriety in the discharge action that would warrant a change nor did it determine any inequity in the characterization of the Applicant’s service at discharge. Based on the Applicant ’ s documentation and his official service and medical records, coupled with the facts and circumstances unique to this case, the NDRB determined that relief was not warranted. The Applicant did engage in serious misconduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service. The Applicant’s combat service and PTSD were considered and did mitigate the effect of the misconduct in the final characterization of his service as Under Other Than Honorable Conditions vice a Bad Conduct Discharge . As such, the NDRB determined that an upgrade in the Applicant’s characterization of service at discharge was not appropriate and is not warranted. Furthermore, the NDRB determined that the narrative reason for separation was proper as issued and accurately reflected the Applicant’s reason for separation; therefore, it shall remain Misconduct ( Commission of a Serious Offense) .

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 NDRB determined that 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, Employment /Educational Opportunities, Service Benefits 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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