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USMC | DRB | 2011_Marine | MD1101037
Original file (MD1101037.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110316
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)       20041222 - 20050202     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20050203     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070626      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 24 D a y ( s )
Education Level:        AFQT: 48
MOS: 3521
Proficiency/Conduct M arks (# of occasions): /          Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle , , , , , , , CoC

Periods of UA :

Periods of Confinement: 20070314 - 20070406, 24 days)

NJP:     SPCM:    Retention Warning Counseling :

SCM:

- 20070313 :      Article ( Wrongful use, possession, etc of schedule I controlled substances , 2 specifications )
         Specification 1: On or a bout 20070227, wrongful use of cocaine (5279 ng/ml per naval drug lab testing)
         Specification 2: O n or about 20070227, wrongfully possess an amount of m arijuana on a F ederal I nst a llation.
         Sentence: (20070314 - 20070406, 24 days)

CC: Applicant was arrested by local law enforcement for underage drinking at the Driftwood Club, Jacksonville, North Carolina. [extracted from Administrative separation package – arrest occurred while pending administrative separation]

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 characterization of service at discharge was inequitable in that it was based on a n isolated incident of misconduct, which resulted from his combat-related Post - Traumatic Stress Disorder (PTSD).

Decision

Date: 20 1 1 0908   Location: Washington D.C .       R epresentation :

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

 In accordance with U.S. Code, Title 10, Section 1553 (d) (1), the b oard 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 with waivers to enlistment and induction standards for pre-service drug use (marijuana) and for a pre-service juvenile felony offense. The Applicant enlisted with a guaranteed contract Equipment/Vehicle Repair Option. The Applicant’s military service record further documents that he is a combat veteran, having served honorably during a combat deployment in the al-Anbar p rovince of Iraq in support of Operation IRAQI FREEDOM from March to October 2006 . Moreover, the Applicant received the Combat Action Ribbon for his individual actions against opposing enemy forces and a Navy and Marine Corps Achievement Medal for his professional achievement in the performance of his duties while deployed. The Applicant’s official record of service did not include any 6105 retention-counseling warnings; however, he was subject to a Summary Court - Martial for the wrongful use, possession, etc of a Schedule I controlled substance ( wrongful use of c ocaine (5276 ng/ml) and possession of a quantity of marijuana ) on 20 070313 . The Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs - in writing - on 22 December 2004 as a function of his enlistment wa i ver process . Based on the Article 112(a) violation, by service policy, processing for administrative separation was mandatory. When notified of the administrative separation process using the board notification procedure, the Applicant elected to waive his right to consult with a qualified counsel, to submit a written statement to the Separation Authority, or to request an adminis trative separation board be held.

(Non decisional issue) - The NDRB noted that the Applicant’s DD Form 293 (issues statement) included the Applicant’s contention that he suffers from PTSD. The Applicant should be aware that the VA has announced special VA enrollment access for PTSD and mental healt h 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. The Applicant, as a combat veteran, is encouraged to contact his local VA affairs representative for more information and may request a compensation and pension review regarding PTSD 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 issue) ( ) . The Applicant contends that his characterization of service at discharge was inequitable in that it was based on a n isolated incident of misconduct, which resulted from his PTSD.

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, performance, service record, or time in service. Moreover, this action usually results in an unfavorable characterization of service at 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’s command did not opt to pursue a punitive discharge but instead chose the more lenient non-pun i tive S ummary C ourt -M artial and administrative discharge process. Based on the seriousness of the offense committed during the Applicant’s enlistment, the chain of command recommended separation with an Under Other Than Honorable Conditions characterization of service at discharge. The Separation Authority reviewed the evidence of record and the gravity of the charges and concurred , finding that a preponderance of the evidence supported the misconduct of record . The Separation Authority approved the command’s recommendation for separation and directed the Applicant to be discharged for Misconduct (Drug Abuse) pursuant to paragraph 6210.5 of the Marine Corps Separation and Retirement Manual. He was assigned the corresponding separation code of HKK1 (Drug Abuse – Board Waived) and a reentry code of RE-4B (not recommended for reenlist ment – in service drug abuse).

Equity - 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 treatment records, but the VA was unable to locate them. Furthermore, the NDRB did not find any reference to a medical diagnosis of PTSD in the Applicant’s service record to support his c laim and the Applicant did not pro vide any documentary evidence of a medical diagnosis by competent medical authorit ies to support his claim. Though the Applicant may feel that PTSD was the underlying cause of his misconduct, the record reflects willful misconduct that demonstrated he was unfit for further service. Possession of marijuana, urinalysis confirmation of cocaine usage , and underage drinking at local off base establishme nts (while pending separation) , which resulted in arrest, were all conscious decisions to violate the tenants of ho norable and faithful service.

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 discharge 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. After a thorough review of the Applicant’s record of service, the NDRB determined that the Applicant had engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB determined that the narrative reason for separation and the resulting characterization of service at discharge was proper, was equitable, was warranted, and was and is consistent with the characterization of discharges given to others in similar circumstances. An upgrade or change would be inappropriate. Accordingly, relief as requested, is denied.

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

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