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USMC | DRB | 2011_Marine | MD1100205
Original file (MD1100205.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20101028
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)       20010420 - 20010508     Active:            20010509 - 20041001

Period of Service Under Review:
 Date of Current Enlistment: 20041002     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080725      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 24 D a y ( s )
Education Level:        AFQT: 49
MOS: 2111
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle Pistol (2 , w/ 3 CAMPAIGN STARS ) (2) CoC LoA (3) MM

Periods of CONF :

NJP:

- 20050405 :      Article (UA 0445-0610, 20050330 )
         Awarded: (to E-3) Suspended: (suspend 6 months)
         * Suspension vacated 20050520.

- 20050607 :      Article (Disrespectful in language toward a noncommissioned officer) , 20050515
         Article (Failure to obey order or regulation , failed to properly secure the armory and complete the daily sight count as ordered ) , 20050517
         Awarded: (to E-2) Suspended: (suspend 6 months)

- 20080401 :      Article (Drugs , d- methamphetamine 11 , 588 ng/ml , d-amphetamine 2 , 423 ng/ml), o/o 20080222
         Awarded: (to E-3) Suspended: (suspend 6 months)

- 20080512 :      Article (Drugs , d- methamphetamine 2 , 686 ng/ml , d-amphetamine 1 , 939 ng/ml ) , 20080421
         Awarded: (to E-2) Suspended: (suspend 6 months)

SCM:

SPCM:

CC:




Retention Warning Counseling:

- 20050706 :       For my failure to report to the Squadron PFT at 0515 on 20050608 as specified by your SNCOIC. I finally showed up for duty at 0724, same day, stating that my child was sick. My spouse does not have a job therefore no excuse was accepted. The deficiencies are indicative of improper time management, poor judgment , and lack of initiative. They also set a poor example and bring discredit upon this unit and me.

- 20060118 :       For unauthorized absence.

- 20060320 :       For inadequate supervision of gear under your charge, which resulted in the item not being reported as missing from the armory.

- 20080317 :       For my illegal drug involvement, (methamphetamine usage identified through urinalysis confirmed by Navy Drug Lab Balboa Medical Center). Your actions demonstrated a lack of discipline and judgment. This type of conduct will not be tolerated and shows a blatant disregard for the high standards expected of a Marine.

- 20080404 :       For your misconduct, specifically you wrongfully used methamphetamine, a controlled substance, in which you were subsequently held responsible at NJP on 20080401.

- 20080610 :      For your misconduct, specifically on 20080421 you wrongfully used methamphetamine, a controlled substance, which you were subsequently held responsible for at NJP on 20080512.

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 010509 UNTIL 041001 ”
          “ 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.       Applicant seeks to separate his first enlistment of honorable service from his second enlistment of other than honorable service.
2 .       Applicant contends mental health issues and opioid dependence he experienced after return from his second deployment to Iraq led to the misconduc t for which he was discharged.

Decision

Date: 20 1 1 0 602            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. The Applicant identif ied two decisional issues for t he Board ’s consideration . The Board co nducted a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent sta ndards of equity and propriety. The Applicant’s record of service included 6105 counseling warnings and for o f the Uniform Code of Military Justice (UCMJ): Article ( Absence without leave, from his place of duty in the armory, 0445-0610 on 30 Mar 2005 ), Article ( Insubordinate conduct toward noncommissioned officer, disrespectful language, 15 May 2005 ), Article ( Failure to obey order, securing armory and completing daily sight count as ordered, 17 May 2005 ) , and Article ( Wrongful use, possession, etc . of a controlled substance, methamphetamine, two specifications: 22 Feb 2008, 11 , 588 ng/ml; 21 Apr 2008, 2 , 686 ng/ml as evidenced by NAVDRUGLAB msgs referenced in service records) . The Applicant a pre-service drug waiver for using marijuana prior to entering the Marine Corps, acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 18 April 2001 . Based on the Article 112a violation , processing for administ rative separation is mandatory per the Marine Corps Separation and Retirement Manual (MARCORSEPSMAN) . When notified of a dministrative separation processing using the procedure on 19 May 2008 , the Applicant rights to submit a written statement and request an administrative separation board . The Applicant was separated from the Marine Corps on 25 Jul y 2008 with an Under Other Than Honorable Conditions discharge due to Misconduct (Drug Abuse).

: ( Non- Decisional) The Applicant seeks to separate his first enlistment of honorable service from his second enlistment of other than honorable service. The NDRB will recommend to the Commandant of the Marine Corps that the Applicant’s DD Form 214, Block 18 (Remarks), be amended to read: “Continuous active honorable service from 010509 until 041001. ”

: (Decisional) ( ) . The Applicant contends mental health issues and opioid dependence he experienced after return from his second deployment to Iraq led to the misconduc t for which he was discharged. The Board conducted an exhaustive review of the records and found conclusive evidence that the Applicant did receive intensive medical treatment to include s urg ery, narcotic pain medication, and physical therapy for the foot and ankle injury he sustained in Iraq in early 2006 . The records , in conjunction with the Applicant’s statemen t, also reflect that he had become dependent on the opioid medications he had been prescribed for pain. Within weeks after receiving another surgery in early 2008, the Applicant was removed from the prescription narcotics for pain. On 22 Feb ruary 2008, the Applicant participated in a command urinalysis that resulted in a positive test for methamphetamine. Two months later, after another urinalysis, he tested positive again for methamphetamine. The Board could not find evidence withi n the records , nor did the Applicant provide any evidence to the Board , to indicate he attempted to u se his chain of command or medical services to assist in managing his post-operative pain. In his letter to the Board, he states that shortly after being removed from prescription pain medication, he was offered illegal drugs and he “didn’t hesitate to use them . ” The NDRB recognizes that serving in the Marine Corps is challenging. However, Marines are expected to uphold high standards of conduct, regardless of the environment or mission in which assigned. After careful consideration, the Board determined th e Applicant’s opioid dependence was not a mitigating factor in his illegal drug use .

On 4 Jun e 2007, the Applicant was seen at sickcall for an ankle injury incurred while playing basketball. In the evaluation report, the physician noted th ey would refer the Applicant for possible therapy of delayed PTSD. Two weeks later, on 28 Jun e 2007, the App licant was evaluated and found “N ot F it for D uty ” due to his continued foot and lower back pain and referred for a P hysical E valuation B oard (PEB) review. The physician noted that the Applicant had “recently been evaluated for sleepwalking, placed on Elavil (anti-depressant) with good results , and was ruled out for PTSD . ” A PEB was conducted in Washington , DC on 7 Sep tember 2007 , which resulted in the Applicant being found “F it for C ontinued S ervice. ” The Applicant was returned to his command, placed on limited duty , and continued to receive treatment/therapy for his foot and ankle injury. On 21 Feb ruary 2008, during a P ost- D eployment H ealth A ssessment, the Applicant noted that he had or had recently experienced personal conflicts, depression, anger, and that he had thoughts that he may want to hurt someone. The next day he participated in the first urinalysis (22 Feb ruary 2008) in which he would test positive for methamphetamine. After again testing positive for methamphetamine on a second urinalysis (21 Apr il 2008), the Applicant voiced a suicide ideation to a member of his command for which he was subsequently admitted to the mental health department , Naval Medical Center San Diego , CA (1 4-20 May 2008 ) . A mental health evaluation was conducted with the following results: AXIS I, Adjustment Disorder with Depressed Mood and Methamphetamine Dependence; AXIS II, None; AXIS III, Chronic Pain Lower Ext r emity; AXIS IV, Problems with Primary Support, Occupational, Financial, Legal. The report also stated the Applicant was responsible for all actions and was a low risk to self and others. Based on the findings, the physician recommend ed continued mental health treatment, but noted the Applicant was fit for full duty and substance abuse treatment. Upon release from the mental health department, the Applicant was transferred the next day to in-patient treatment for substance abuse/dependen ce rehabilitation (Level III).

Upon completion of Level III treatment, the Licensed Clinical Social Worker assigned to work with the Applicant reported he “lacks coping skills for dealing with difficult emotional situations without using mood altering substances or suicide ideations. Patient is addicted to substances, has depression, and PTSD. He chooses to continue drinking and is not planning to seek sober support . ” Based on the Applicant’s record of service and with no evidence to support that he was not responsible for his actions, his command processed him for administrative separation due to P attern of M isconduct and D rug A buse. On 9 Jul y 2008, the Applicant received a separation physical and was found fit for separation. After review of all the facts and circumstances surrounding the Applicant’s discharge, the Board found no evidence to support his claim that mental health issues led to or mitigated the misconduct for which he was separated. Relief denied.

The U.S. Department of Veterans Affairs (VA) has announced special access to combat veterans discharged under other than dishonorable conditions. The VA determines the eligibility for enrollment independent of the Applicant’s characterization of service as determined by the Marine Corps. Effective 28 January 2008, combat veterans discharged from active duty on or after 28 January 2003 are eligible for combat-veteran enhanced eligibility and enrollment placement into Priority Group 6 (unless eligible for higher enrollment Priority Group placement) for five years after discharge. The Applicant, as a combat veteran, is encouraged to contact the VA for more information at http://www4.va.gov/healtheligibility/Library/pubs/CombatVet/CombatVet.pdf or 1-877-222-VETS (8387).
Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries and 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 for additional information.



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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