Upgrade.Vet

USMC | DRB | 2010_Marine | MD1001864

Original file (MD1001864.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20100722

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)       20041203 - 20050726     Active:

Period of Service Under Review:
Date of Current Enlistment: 20050727     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20090807      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 12 D a y ( s )
Education Level:        AFQT: 34
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle , (Iraq) , (w/1 Bronze Service Star), (2 ), ,

Periods of CONF :

NJP:

- 20060320 :      Article (Unauthorized absence, 0801 20060304 - 1100 20060316, 12 days)
         Awarded: Suspended:

- 20070221 :      Article (Fail to obey lawful general order, to wit MCO 1700.22D, by wrongfully drinking alcohol while under the age of 21)
         Awarded : Susp ended:

- 20090618 :      Article ( Wrongful use, possession, etc of a controlled substance - THC , 2 specifications )
         Specification 1: O n or about 20090513, wrongfully test ed positive for marijuana at 58 ng/ml
         Specification 2: On or about 20090527, wrongfully test ed positive for marijuana at 19 ng/ml
         Awarded: Suspended:

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:

         “ 04 00 00 ”
         “ 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 .       Nondecisional issues : The Applicant seeks an upgrade to his discharge characterization of service in order to achieve eligibility for Department of Veterans Affairs (VA) medical benefits and counseling .

2.       Decisional issues: T he Applicant contends that his misconduct of record was the result of stress from depression and anxiety related to Post - Traumatic Stress Disorder (PTSD) , which warrants consideration as extenuating and mitigating factors to his discharge and the characterization of service he received.

Decision

Date: 20 1 1 1116          Location: Washington D.C .         R epresentation :

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

Discussion

I n accordance with U.S. Code, Title 10, Section 1553 (d) (1), the NDRB 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 reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis; if such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with the standards of discipline of the Naval Service. The Applicant submitted one decisional issue for the NDRB’s consideration; additionally, the NDRB completed 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 both equity and propriety.

The Applicant entered military service at age 18 on a four year enlistment with a guaranteed contract of Infantry Option. The Applicant’s enlistment record reflects entry into military service without any waiver s to enlistment and induction standards. During the enlistment process, the Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning the Illegal Use of Drugs - in writing - on 23 November 2 00 4 . The Applicant completed four years and twelve days of a four-year enlistment obligation. The Applicant completed two deployment s as an Infantryman in the Al-Anbar Province of Iraq while conducting combat operations in support of Operation IRAQI FREEDOM (OIF). The military service record further documents that he was awarded the Combat Action Ribbon for his actions while engaged in direct combat operations against enemy forces in the vicinity of Habbaniyah , Iraq.

The Applicant ’s record of service documents no paragraph 6105 retention-counseling warnings. However, it does document three non-judicial punishments (NJP s ) ( Mar 06/Feb 07/Jun 09) for violation s of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave - absented himself from his unit without authority for 12 days) , Article 92 (Failure to obey an order or regulation - underage drinking ) , and Article 112(a) (Wrongful use, possession, etc of a controlled substance , marijuana , 2 specifications) . Based on the violation of Article 112(a), processing for administrative separation, by service policy, was mandatory. When notified of administrative separation processing using the notification procedure, the Applicant waived right s to consult with a qualified legal defense counsel and to request an administrative hearing board. He did elect to submit a written statement for consideration by the Separation Authority .

The Applicant was notified - in writing - of the Command’s intent to process the Applicant for administrative separation for Misconduct (Drug Abuse) in accordance with paragraph 6210.5 of the M arine Corps Separation and Retirement Manual (MARCOR SEPMAN ) . The Applicant was advised that the least favorable characterization of his service at discharge was

under other than honorable conditions and that characterization was what the Command was recommending he be awarded. After review by the Staff Judge Advocate, the Separation Authority determined that the evidence of record was sufficient in law and fact to support the proposed discharge action. He reviewed the chain of command’s recommendations regarding characterization of service, to include a personal statement from the Applicant apologizing for his actions and seeking consideration concerning the characterization of his service. On 31 July 200 9 , the Separation Authority directed the Applicant be discharged with an Under Other Than Honorable Conditions characterization of service for Misconduct (Drug Abuse) pursuant to paragraph 6210.5 of the MARCORSEPMAN. H e further directed that, upon his discharge, the Applicant receive an RE-4B re-entry code (not recommended for reenlistm ent, in service drug abuse).

(Non-decisional Issue) The Applicant seeks an upgrade to his discharge characterization of service in order to achieve eligibility for VA medical benefits and counseling. There is no requirement, or law, that grants re-characterization solely on the issue of facilitating access to VA benefits . Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities or employment opportunities . Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge. As such, this issue does not serve to provide a foundation upon wh ich the NDRB can grant relief.

The VA has announced special VA enrollment access for PTSD and mental health treatment to combat veterans discharged under other than dishonorable conditions. Effective Jan. 28, 2008, combat veterans discharged from active duty on or after Jan. 28, 2003 are eligible for combat veteran enhanced eligibility and enrollment placement into Priority Group 6 (unless eligible for higher enrollment Priority Group placement) for 5 years post discharge. Additionally, the VA determines the eligibility for enrollment in its programs - independent of the Applicant’s characterization of service as determined by the Marine Corps. The Applicant, as a combat veteran, is encouraged to contact his local VA affairs representative for more information and may request a review of service and determination of benefits from the VA. Alternately, he may call 1-877-222-8387 or visit the following website for more information: http://www4.va.gov/healtheligibility/Library/pubs/CombatVet/CombatVet.pdf

(Decisional Issues) ( ) PARTIAL . T he Applicant contends that his misconduct of record was the result of stress from depression and anxiety related to PTSD .

Propriety - The Applicant was recommended for administrative separation in accordance with paragraph 6210.5 of the MARCORSEPMAN - Misconduct (Drug Abuse ) . The Applicant was afforded the opportunity to consult with a qualified legal defense counsel and was notified properly of the proposed recommendation for separation; he acknowledged the separation process and elected his rights - in writing. Naval Drug Lab screening results documented the presence of THC (marijuana) in the Applicant’s system and established by a preponderance of evidence that the Applicant had violated Article 112(a) of the UCMJ twice . Processing for administrative separation for illegal drug use was mandatory. Based on the documentation of record, the NDRB determined that the separation was proper and the narrative reason for separation was accurate. No relief based on propriety of the discharge action is warranted.

Equity - Despite a service member’s prior record of service, certain serious offenses, though isolated, warrant separation from the Naval Service in order to maintain good order and discipline. Violation of Article 112(a) is one such offense, requiring mandatory processing for administrative separation, regardless of grade, combat experience, 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 Applicant did not contest the separation action and waived his right to defend himself at an administrative board hearing , though he did submit a letter apologizing for his actions and requesting that his service, coupled with combat service and PTSD injuries, be considered.

The Applicant contends that his misconduct of record was resultant from diminished coping skills , anxiety, and depression as he was suffering from PTSD, diagnosed while in service, and attempting to self-medicate to avoid the stigma of being seen and treated for mental health issues, which were mitigating factors to his misconduct . 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. The NDRB requested the Applicant’s medical record , but the VA was unable to locate them. However, a fter an in - depth review of the Applicant’s documentation, his service record , and discharge physical, the contention of PTSD was established as existing in-service prior to two of the three documented misconducts of record. After a careful review of the Applicant’s combat deployment history, in-service mental health issues, and diagnosed PTSD, coupled with the character statements and letters of reference from current and former service members, the NDRB determined the Applicant’s PTSD and associated symptoms were mitigating and contributory factors in his misconduct.

Given the facts of the record, the information provided by the Applicant, and the Applicant’s combat service, the NDRB determined that the Applicant’s conduct, which forms the primary basis for determining the character of his service, was honest and faithful, but that a significant negative aspect of the member’s conduct did outweigh the overall positive aspects of his record. As such, given the facts and circumstances unique to this case, the NDRB determined partial relief was warranted based on equitable grounds. The NDRB voted 4-1 to upgrade the characterization of service at discharge to General (U nder Honorable Conditions), but, by a vote of 5-0, that no change to the narrative reason for separation is warranted. Full relief to Honorable was not granted, because there was documented misconduct before the Applicant’s combat deployments.

Summary: After a thorough review of the available evidence, to include the Applicant’s statements and supporting documentation, the summary of his service, service and medical record entries, and discharge process, the NDRB determined that Therefore, the awarded characterization of service shall , however, 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 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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USMC | DRB | 2010_Marine | MD1001864

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