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USMC | DRB | 2011_Marine | MD1100120

Original file (MD1100120.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20101019

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)       20050524 - 20051010     Active:

Period of Service Under Review:
Date of Current Enlistment: 20051011     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20090916      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 06 D a y ( s )
Education Level:        AFQT: 40
MOS: 1833
Proficiency/Conduct M arks (# of occasions): (10) / (10)        Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle , , , (WITH 2 BRONZE SERVICE STARS), (2) , ,
Periods of UA :

NJP:     SPCM:    CC:      Retention Warning Counseling : None

SCM:
- 20090406 :       Art icle (Drugs – cocaine 1669 ng/ml)
         Sentence : (20090406-20090429, 24 days)

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 .

D. U.S. Code, Title 10, Section 1553 (d) (1) and (d) (2).

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

Applicant’s Issues

1.       No ndecisional issues: None

2.       Decisional issues : The Applicant contends his characterization of service at discharge was inequitable; his misconduct was an isolated incident in what was an otherwise outstanding military career. The 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 2 01 05         Location: Washington D.C .         R epresentation :

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

Discussion

The NDRB reviewed the Applicant’s personal statement; the Applicant stated that he was suffering from PTSD. As such, in 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 ac hieve 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 1 9 on a four year enlistment with a guaranteed contract of Combat Support Option - ultimately trained as a n Amphibious Assault Vehicle Crewman . The Applicant’s enlistment record reflects entry into military service with waivers to enlistment and induction standards for pre-service admitted illegal drug use (marijuana) and a failure to meet Marine Corps height/weight 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 10 May 2005 . The Applicant completed three years and eleven months of his four-year enlistment obligation.
The Applicant completed two deployments as a provisional 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 Saqlawiyah , Iraq .
The Applicant’s record of service documents no paragraph 6105 retention-counseling warnings or non-judicial punishments (NJP) for any violation s of the Uniform Code of Military Justice (UCMJ) . However, the record does document a summary court - martial for violation of Article 112(a) (Wrongful use, possession, etc of a controlled substance ( cocaine ) - 1669 ng/ml, as confirmed by Naval Drug Lab testing ). Based on the violation of Article 112(a), processing for administrative separation, by service policy, was mandatory. Based on a signed pre-trial agreement, the Applicant waived his right to an administrative separation board and pled guilty of the charge as specified at a summary court - martial for withdrawal of charges being referred to t rial by special court-martial.

(Decisional Issues) ( ) PARTIAL . The Applicant contends his characterization of service at discharge was inequitable; his misconduct was an isolated incident in what was an otherwise outstanding military career. Furthermore, t he Applicant contends that his misconduct of record was the result of stress from anxiety related to PTSD .

Propriety - The Applicant was recommended for administrative separation in accordance with paragraph 6210.5 of the M arine Corps Separation and Retirement Manual (M ARCORSEPMAN ) for Misconduct (Drug Abuse). The Applicant was advised that the least favorable characterization of his service at discharge was U nder O ther T han H onorable C onditions and that characterization was what the Command was recommending he be awarded. The Applicant was afforded the opportunity to consult with a qualified legal defense counsel - which he did - 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 c ocaine metabolites in the Applicant’s system and established, by a preponderance of evidence, that the Applicant had violated Article 112(a) of the UCMJ. Processing for administrative separation for illegal drug use was mandatory by service policy. 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. On 02 September 2009, 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. He further directed that, upon his discharge, the Applicant receive a n RE-4B re-entry code (not recommended for reenlistment, in - service drug abuse). Based on the documentation of record, the NDRB determined that the separation was proper and the narrative reason for separation was accurate. A change in narrative reason for separation would be inappropriate. No relief based on propriety of the discharge action is warranted.
E quity - The Applicant contends his misconduct was an isolated incident in what was an otherwise outstanding military career. 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 in order to avoid the possible punitive actions of trial by special court - martial .
T he Applicant contends that his misconduct of record was the result of stress from anxiety related to PTSD . 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, after an in - depth review of the Applicant’s documentation, which included the Department of Veterans Affairs compensation and pension examination with evaluation for PTSD , the contention of PTSD (combat related) was established as existing in-service, prior to the documented misconduct of record. Additionally, the records document that the PTSD was diagnosed while in-service. After a careful review of the Applicant’s combat deployment history, his in-service mental health issues and diagnose s of PTSD, 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 5-0 to upgrade the characterization of service at discharge to General (Under 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 due to the serious nature of misconduct by drug abuse. Partial relief warranted.
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 | 2011_Marine | MD1100120

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