Search Decisions

Decision Text

USMC | DRB | 2011_Marine | MD1100922
Original file (MD1100922.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110225
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)       20020430 - 20021117     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20021118     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20060511      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 24 D a y ( s )
Education Level:        AFQT: 48
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (3) , , A rmy A chievement M edal, (WITH 1 STAR) , , , GWOTEM, , CoC

Periods of UA / CONF :

NJP:

- 20051025 :      Article 92 (Failure to obey a lawful order or regulation - possessing drug paraphernalia)
         Article ( Wrongful use, possession, etc of controlled substances - marijuana)
         Awarded: Suspended:
         [Extracted from Commanding Officer’s recommendation for discharge dated 20060106.]

SCM:

- 20060302 :      Article ( Wrongful use, possession, etc of controlled substances - marijuana ( 39 ng/ml ) )
         Sentence:

SPCM:    CC:

Retention Warning Counseling :

- 20051102 :       For my illegal drug involvement, cocaine usage identified through urinalysis by NAVDRUGLAB message.








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

 Decisional issues: The Applicant contends that his discharge characterization of service was inequitable; his misconduct was the result of diminished coping skills resultant from undiagnosed Post - Traumatic Stress Disorder (PTSD). As such, the Applicant contends that h is combat service warrants consideration for an upgrade in his characterization of service.
        
Decision

 Date: 20 1 1 0 616            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 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 Applicant identified one decisional issue for the NDRB’s consideration. In reviewing the Applicant’s issue, 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 equity and propriety.

The Applicant’s enlistment record reflects his entry into military service without requirement for any waivers to enlistment standards. He enlisted on an Infantry Option guarantee contract for 4 years of active duty military service. The Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning the Illegal Use of Drugs, in writing, on 29 April 2002 as a condition of his enlistment .

The Applicant’s service record documents that he is a combat veteran, having served honorably in the Al-Anbar province of Iraq in support of Operation IRAQI FREEDOM from February to July 2004 and again from January to August 2005 . The Applicant received the C ombat A ction R ibbon for his individual actions while participating in direct combat operations as an infantryman from 09 April 2004 to 13 May 2004 during Operation Vigilant Resolve with Task Force 3/4 in Al-Anbar, Iraq.

The Applicant’s record of service does not reflect any paragraph 6105 retention-counseling warning s but does contain one nonjudicial punishment for violation s of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey a lawful order or regulation - possession of drug paraphernalia) and Article 112(a) ( W rongful use, possession, etc of a controlled substance - marijuana ). Based on the Article 112(a) violation, processing for administrative separation from the service was mandatory. While pending mandatory administrative processing for separation, the Applicant tested positive again for illegal marijuana use as confirmed by Naval Drug Lab urinalysis test - 39 ng/ml. Due to the rep e t i tive nature of the drug use, the Command referred charges for trial by Special Court - Martial. While awaiting trial by S pecial C ourt -M artial, the Applicant - after consultation with defense counsel - entered into a voluntary pre-tri a l agreement (PTA) in which the Applicant agreed to enter a voluntary plea of guilty to the charge and specification at a trial by Summary Court - Martial provided the C onvening A uthority withdr e w the charges from trial by Special Court - Martial. On 15 February 2006, the Convening Authority withdrew the charges from trial by Special Court - Martial and accepted Summary Court - Martial as the means of adjudication. The Applicant subsequently pled guilty to the charges as specified at S ummary C ourt -M artial and was adjudged 20 days confinement and reduction in rank to E-2, Private First Class.

The NDRB reviewed the Applicant’s administrative separation package to ensure he was afforded all rights, as required by the Marine Corps Separation and Retirement Manual (MARCORSEPMAN). On 02 November 2005 , 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 MARCORSEPMAN. The Applicant was further 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. When notified of administrative separation processing using the administrative board notification procedure, the Applicant waived right to consult with a qualified legal counsel. Additionally, the Applicant elected to not submit written matters to the Separation Authority and chose to waive his right to request a hear i ng before a n administrative separation board. 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 for an Under Other Than Honorable Conditions characterization of service and a personal statement from the Applicant seeking a General (Under Honorable Conditions) characterization of service. On 04 May 2006 , t he Separation Authority directed the Applicant be discharged with an Under Other Than Honorable C onditions characterization of service by reason of Misconduct (Drug Abuse).

The Applicant provided no additional documentation that was not already contained in his service records for the NDRB’s consideration or to rebut any presumption of regularity by the NDRB . T he Applicant ’s personal statement to the NDRB indicated a p ost-service diagnosis of, and treatment for, PTSD - but provided no supporting evidentiary documentation.

(Decisional Issue) ( ) . The Applicant contends that his discharge characterization of service was inequitable; his misconduct was the result of diminished coping skills resultant from undiagnosed PTSD. As such, the Applicant contends that his combat service warrants consideration for an upgrade in his characterization of service.

Propriety - The NDRB conducted 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 equity and propriety. The Applicant was represented by civilian legal counsel and was properly notified of the proposed separation processing; he acknowledge d the separation process and elected his rights - in writing. Naval Drug Lab screening results documented the presence of marijuana in the Applicant’s system ; it 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. 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 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 S pecial or G eneral C ourt- M artial. T he Command opted to withdraw the charges from trial by S pecial C ourt -M artial and instead adjudicated the misconduct at the more lenient non-judicial S ummary C ourt -M artial and the administrative discharge process.

The Applicant contends that his misconduct of record was resultant from diminished coping skills as he was suffering from undiagnosed PTSD complicated by sever e family problems. 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; after an in - depth review, there were no indicators of PTSD documented in the record. The Applicant did not provide any documentary evidence from civilian mental health care professionals or from the VA medical system to support a diagnosis of PTSD for consideration in mitigation of the misconduct. The NDRB did review the Applicant’s proficiency and conduct (pro/con) marks and overall service record and did not notice any major changes except after his S ummary C ourt - M artial . The NDRB found no medical diagnosis in the record to support the Applicant ’ s claim nor did the Applicant produce any medical diagnosis by competent medical authority to support his claim. While he may feel that this was the underlying cause of his misconduct, the record clearly reflects his willful misconduct that demonstrated he was unfit for further service. Without further documentary evidence of PTSD, the NDRB cannot form a basis of relief.

Characterization of service at discharge is the recognition of a Marine’s performance and conduct during a period of enlistment and is not necessarily dependent upon the narrative reason for separation. When the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under Honorable conditions. An Under Other Than Honorable Conditions characterization of service is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval S ervice. The NDRB determined that an uncorroborated diagnosis of PTSD does not form a basis for mitigati on of the willful and deliberate violation of Article 112 (a) , twice . The Applicant’s conduct reflected a significant departure from that conduct expected of a service member by one or more acts or omissions; as such, the awarded characterization was appropriate, was equitable, and was consistent with the characterization of discharge given others in similar circumstances. Accordingly, relief denied.


Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, service and medical record entries, and discharge process, the NDRB determined that 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 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

Similar Decisions

  • USMC | DRB | 2011_Marine | MD1101549

    Original file (MD1101549.rtf) Auto-classification: Denied

    Based on the violation of Article 112(a), processing for administrative separation, by service policy, was mandatory.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 Marine Corps Separation and Retirement Manual (MARCORSEPMAN). On 01 March 2004, the Separation Authority approved the request that the Applicant be separated administratively with an...

  • USMC | DRB | 2012_Marine | MD1200202

    Original file (MD1200202.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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: Other Documentation: Additional Statements:From Applicant: From/To Representation:From/ToCongress member: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD...

  • NAVY | DRB | 2010_Navy | ND1001837

    Original file (ND1001837.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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: Other Documentation: Additional Statements:From Applicant: From/To Representation:From/ToCongress member: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD...

  • USMC | DRB | 2010_Marine | MD1001959

    Original file (MD1001959.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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: Other Documentation: Additional Statements:From Applicant: From/To Representation:From/ToCongress member: Pertinent Regulation/Law A.Paragraph 1105, DISCHARGE...

  • USMC | DRB | 2012_Marine | MD1200281

    Original file (MD1200281.rtf) Auto-classification: Denied

    The military service record further documents that he was awarded a Navy and Marine Corps Achievement Medal for his combat support efforts while deployed in a designated combat zone.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. Summary : After a thorough review of the available evidence, to include the Applicant’s record entries and...

  • USMC | DRB | 2011_Marine | MD1100022

    Original file (MD1100022.rtf) Auto-classification: Denied

    With no Bad Conduct Discharge remaining due to clemency, the Convening Authority processed the Applicant for an administrative discharge pursuant to paragraph 6210.6 of the Marine Corps Separation and Retirement Manual. Summary: After a thorough review of the available evidence, to include the Applicant’s documentation, summary of service, service record entries, results of trial by special court martial, and the discharge process, the NDRB determined that Therefore, the awarded...

  • USMC | DRB | 2011_Marine | MD1100364

    Original file (MD1100364.rtf) Auto-classification: Denied

    Based on the documented evidence of record, the NDRB determined that the Applicant’s misconduct of record was not an isolated incident, that separation was warranted, and that the characterization of service as adjudged, was appropriate. The NDRB conducted a thorough review of the available evidence, to include the Applicant’s pre-service drug waiver, Summary of Service and Service Record Entries, medical records, verbatim transcript of the Special Court-Martial proceeding, and the overall...

  • USMC | DRB | 2012_Marine | MD1200361

    Original file (MD1200361.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive:USMCR (DEP)20041118 - 20041205Active: Period of Service Under Review: Date of Current Enlistment: 20041206Age at Enlistment: Period of Enlistment: Years MonthsDate of Discharge:20080226Highest Rank:Length of Service: Year(s)Month(s)27 Day(s)Education Level: AFQT:63MOS: 3531Proficiency/Conduct Marks (# of occasions):()/()Fitness Reports: Awards and Decorations (per DD...

  • USMC | DRB | 2011_Marine | MD1101562

    Original file (MD1101562.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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: Other Documentation: Additional Statements:From Applicant: From/To Representation:From/ToCongress member: Pertinent Regulation/Law A. Due to the administrative...

  • USMC | DRB | 2012_Marine | MD1200355

    Original file (MD1200355.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated to Military Service: DD 214:Service/Medical Record:Other Records: Verbatim Record of Trial by SPCM 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: Other Documentation: Additional Statements:From Applicant: From/To Representation:From/ToCongress member: DEPARTMENT OF THE...