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USMC | DRB | 2010_Marine | MD1001730
Original file (MD1001730.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20100629
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)       20051012 - 20051023     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20051024     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080424      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 08 D a y ( s )
Education Level:        AFQT: 35
MOS: 0331
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle Pistol

Periods of UA :

NJP:

SCM:

- 2007 1128 :       Art icle (Wrongful use , possession, etc. of a controlled substance , methamphetamine, 1303 ng/ml )
         Sentence : (20071128-20071220, 23 days)

SPCM:

CC:

Retention Warning Counseling :

- 20061106 :       For exhibiting the propensity to behave in a manner prejudicial to good order and discipline specifically, you are currently pending a court martial for use of illegal drug and then on the evening of 20071104 you became so intoxicated that the Newport Beach, CA police took you into custody for drunk and disorderly causing you to be unable to report for duty in a timely manner. The fact that they did not charge does not change the fact that you were arrested. Such acts bring discredit upon the United States Marine Corps and all that serve. You are displaying a pattern of misconduct.

- 20061121 :       For UA 20061120 you failed to report to your appointed place of duty Company Formation .

- 200711 0 6 :       For illegal drug related incident .




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 .

C. National Defense Authorization Act for Fiscal Year 2010, Section 512.




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

Applicant’s Issues

 1 .       Applicant contends discharge was improper due to his PTSD condition.

Decision


 Date: 20 10 1028            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. Additionally, because the Applicant stated that he suffered from PTSD, the NDRB processed and adjudicated this case in accordance with Section 512 of the FY2010 National Defense Authorization Act. The Applicant identif ied one decisional issue 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 included 6105 counseling warnings (propensity to behave in a manner prejudicial to good order and discipline to include public intoxication ; unauthorized absence on 20 Nov 2006 ; illegal drug use o/o 24 Aug 2007 ) and for of the UCMJ: Article 112a ( Wrongful use, possession, etc of controlled substance , methamphetamine 1303 ng/ml as confirmed by NAVDRUGLAB msg 6 Sep 2007 ). Prior to enlistment, t he Applicant acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 11 October 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 exercised his rights to consult with a qualified counsel and stated he would submit a written statement (though no documentation of statement found within the record) , but waived his right to request an administrative board proceeding.

The Applicant provided documentation that included Department of Veterans Affairs (DVA) Benefits Letter (12 May 10); DVA Long Beach CA HCS Letter (8 Jun 10); and Defense Counsel Submission of Matters on Behalf of Applicant (11 Dec 07).

: (Decisional) ( ) PARTIAL . The Applicant contends discharge was improper due to his PTSD condition. In review ing the available documentation, the Board noted the Applicant had a long history of mental and emotional trauma in his life to include: self-admission of father’s suicide at age 4 in the Applicant’s bedroom; mother’s death via aneurysm at age 11; abuse from adoptive parents during childhood; and possible trauma due to loss of friends during Operation Iraqi Freedom and observing post-suicide attack blast injuries of children. Additionally, the Board noted the Applicant’s self-admission to medical personnel of long periods of insomnia (pre-service and in-service) associated with racing thoughts and two 6-month hospitalizations when he was between the ages of 12 and 13 years old. Normally, admissions of this nature after enlistment would be considered for administrative separation of the service member due to fraudulent entry as they would have been disqualifiers for service . T he record also contained medical evaluations of the Applicant with diagnoses of : alcohol dependence ; anti-social personality disorder ; bipolar disorder ; mood disorder ; and exhibition of PTSD symptoms .

Normally, t he government enjoys a presumption of regularity in the conduct of its affairs. At the time of discharge, the Applicant’s chain of command , in consultation with medical and mental health providers , determined that the Applicant’s misconduct, his decision to use an illegal drug (methamphetamine) , and his refusal of in-patient alcohol rehabilita tion treatment was willful and not a condition or symptom of PTSD related injury, and demonstrated he was unfit for further service. The available evidence at the time did not show that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Though the Applicant displayed some signs indicative of PTSD, the prevailing diagnos e s from multiple physicians included anti-social personality disorder, mood disorder , and alcohol dependence. DoD disability regulations do not preclude a disciplinary separation for misconduct . Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. T he 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 .

In the Applicant’s case, he had not been referred for a physical evaluation board , but he was referred for a mental health examination and follow-on substance abuse treatment for alcohol dependency. The Applicant was subsequently separated from the Marine Corps for misconduct, specifically illegal drug abuse, which requires mandatory processing for administrative separation regardless of grade or time in service. This usually results in an unfavorable characterization of discharge or, at a minimum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The command did not pursue a punitive discharge but opted instead for an administrative discharge. While in-service, the Applicant had an opportunity to defend himself but he waived his right s to an administrative board proceeding or to submit a written statement of rebuttal . After considering all the facts and circumstances surrounding this case to include the Applicant’s pre-service history, total record of service through multiple enlistments, and post-service developments, the Board determined that the Applicant was likely exposed to a series of traumatic events from early childhood and formative ye ars through his last enlistment, which included a combat tour in and around Fallujah, Iraq. T hough seemingly responsible for his actions at the time of discharge, the Board found there was enough evidence to reasonably conclude that the Applicant was suffering from the cumulative effects of multiple mental and emotional impact events that most likely affected his ability to make sound, cognitive , and reasonable decisions. Accordingly, the Board, through split decision, voted to provide the benefit of the doubt to the Applicant and upgrade his characterization of service but maintain the narrative reason for discharge. PARTIAL RELIEF WARRANTED.

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