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USMC | DRB | 2010_Marine | MD1002156
Original file (MD1002156.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20100903
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)       20020920 - 20030223     Active:            20030224 - 20061120

Period of Service Under Review:
Date of Current Enlistment: 20061121     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20100107      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 18 D a y ( s )
Education Level:        AFQT: 70
MOS: 0351/0913
Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (3) (2) (3) CoC (2) MM
Periods of UA :

NJP:     SCM:     CC:      Retention Warning Counseling :

SPCM:
- 20090602 :       Art icle (Operating a motor vehicle wi th a suspended driver’s license , 20090201 )
         Article (Physically control a passenger vehicle while drunk , 20090201 )
         Article ( Wrongful use of a controlled substance, c ocaine 887 ng/ml , o/o 20090112 )
         Sentence : FOP 35 days (20090602 - 20090630, 29 days) RIR (to E-3)

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

          “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 030224 UNTIL 061120 ”

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 :        


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

Applicant’s Issues

 1.       Applicant seeks discharge upgrade to obtain veteran education benefits.
2.       Applicant seeks discharge upgrade to improve employment opportunities.
3 .       Applicant contends his discharge was inequitable based on undiagnosed P ost-Traumatic Stress Disorder (P TSD ) .

Decision

Date: 20 1 1 1 116            Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall MISCONDUCT .
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 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 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 did not include any 6105 retention counseling warnings or commanding officer nonjudicial punishment (NJP). The record did reveal special court-martial (SPCM) for violations of the Uniform Code of Military Justice (UCMJ) : Article ( Failure to obey an order or regulation, operating a vehicle with a suspended license, 1 Feb 2009), Article 111 (Drunken driving, on base, BAC .08, 1 Feb 2009), and Article 112a (Wrongful use, possession, etc of a controlled substance, o/o 12 Jan 2009, cocaine 887 ng/ml, as evidenced by NAVDRUGLAB msg dated 24 Jan 2009). The record also revealed the Applicant received a DUI charge (BAC .10) from the California Highway Patrol on 18 Apr 2008, which was subsequently pled down to “wet and reckless driving” in civil court. The Applicant did not have a pre-service drug waiver for illegal drug use prior to entering the Marine Corps . During enlistment accession processing, he acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 10 Sep 2002 . Based on the Article 112a violation , processing for administ rative separation is mandatory. When notified of a dministrative separation processing using the procedure on 21 Jul 2009 , the Applicant rights to consult with a qualified coun sel, submit a written statement , and request an administrative separation board . On 21 Oct 2009, t he admin istrative separation board found: (by 3-0 vote) via preponderance of the evidence that the Applicant committed drug abuse and serious offense misconduct; (by 2-1 vote) that the Applicant should be separated from the Marine Corps without suspension of discharge; (by 3-0 vote) that the Applicant should receive an Under Other Than Honorable Conditions characterization of service. On 29 Dec 2009, the Commanding General, Training Command recommended to the Separation Authority that the Applicant be administratively separated for misconduct (drug abuse and commission of a serious offense) but receive a General (Under Honorable Conditions) discharge due to the nature and circumstances surrounding the Applicant’s misconduct, his three combat deployments, and diagnosis of PTSD. The Separation Authority, after review of all the facts and circumstances involving the Applicant’s case, concurred and directed that the Applicant be discharged as recommended. The discharge was effected on 7 Jan 2010.

Issues 1-2 : (Nondecisional) The Applicant seeks discharge upgrade to obtain veteran education benefits and improve employment opportunities . The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as r egulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.



: (Decisional) ( ) . The Applicant contends his discharge was inequitable based on undiagnosed PTSD. 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. T he Board conducted a detailed examination of the Applicant’s medical and service records that revealed February 2009 mental health examination s that resulted in a diagnos is of chronic PTSD and alcoholism (dependence). The Applicant was subsequently admitted to Level III (in-patient) substance abuse rehabilitation treatment , which he completed on 16 Mar 2009. Based on the Applicant’s three combat deployments and his PTSD diagnosis, the Commanding General, Training Command recommended to the Separation Authority that the Applicant be administratively separated for misconduct (drug abuse and commission of a serious offense) but receive a General (Under Honorable Conditions) discharge instead of the Under Other Than Honorable Conditions discharge recommended by his chain of command. The Separation Authority (Commanding General, Training and Education Command) agreed and directed that the Applicant be discharged as recommended. The Board, after careful consideration and deliberation, found that the Applicant’s issue was not supported by the facts within the record. The Applicant’s combat deployment history and his PTSD diagnosis were considered during his discharge and used as a basis when the S eparation Authority upgrad ed the administrative separation board’s recommendation for an Under Other Than Honorable Conditions discharge to General (Under Honorable Conditions) . Although the effects of post - traumatic stress may have affected the Applicant’s behavior, he was still responsible for his actions. Accordingly, the NDRB determined that the Applicant’s issue did not provide a basis in which additional relief could be granted. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries and the 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 for additional information.

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 .


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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