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USMC | DRB | 2011_Marine | MD1101083
Original file (MD1101083.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110323
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)       20030701 - 2004 0615     Active:  

Period of Service Under Review:
Date of Current Enlistment: 2004 0416     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070223      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 7 D a y ( s )
Education Level:        AFQT: 86
MOS: 3533
Proficiency/Conduct M arks (# of occasions): /          Fitness R eports:

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

Time Lost : UA/CONF: 20060512 - 20060515 (4 days); 20060516 - 20050522 (8 days); 20060803 - 20061128 (119 days)

NJP:
- 20060501 :      Article ( Failure to go to appointed place of duty, to wit , 0700 accountability formation)
         Article 92 (Failure to obey orders or regulation – violation of out-of-bounds liberty restrictions)
         Awarded: Suspended:

SCM:
- 20051219 :      Al-Asad Air Base, Iraq while deployed. Details NFIR [ Page 13 missing from service record. Extracted from NAVMC 188, Administrative remarks (1070) and MCTFS Diary Retrieval ]

SPCM:
- 20060919 :       Art icle (Unauthorized absence, 2 specifications )
         Specification 1: Fail to go at the time prescribed to his appointed place of duty , to wit , 0715 morning formation
         Specification 2: Fail to go at the time prescribed to his appointed place of duty , to wit , 0600 morning formation
          Article (Failure t o obey a n order or regulation, 1 specification by wrongfully consuming alcohol )
         Article ( Wrongful use, possession, etc of a schedule I controlled substance - Cocaine 234 ng/ml )
         Article (Break ing restriction)
         Sentence : 150 days (20060515 - 20060522, 8 days ; 20060803 - 20061128, 119 days)

Charges p ending but not adjudicated: 20070207 – Violation of Article 112(a) (Wrongful use , p ossession, etc of a schedule I controlled substance – to wit, purchase, use, and introduction of Marijuana aboard a military installation ) .

CC:


Retention Warning Counseling :
- 20060619 :       For going out of bounds on or about 20060424; Applicant was UA from formation, SNM was UA on or about 20060511.

- 20060626 :       For unauthorized absence and false official statement, SNM stated to company staff that he was with his mo ther when UA, which was proved to not be true.

- 20060930 :       For drug abuse resulting in Special Court - Martial held on 20060919, you were found guilty of wrongful use of cocaine as specified in Naval D rug Lab message , which show s that you tested positive with a level of 234 ng of cocaine.

Administrative Corrections to the Applicant’s DD 214

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

 “ 20060512 - 20060515, 20060516 - 20050522, 20060803 - 20061128 ”

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

 D ecisional issues : The Applicant contends that his service was Honorable and that his difficulty re-adjusting to life outside a combat zone led to his misconduct. The Applicant contends that his discharge characterization of service was inequitable in that a new chain of command did not know him and were not able to compare his current service to his previous service , to i nclude his combat deployment.

Decision

 Date: 20 1 1 0915           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 issues statement and determined that the Applicant was inferring that he was suffering from Post - Traumatic Stress Disorder (PTSD), though not specifically stated. As such, i n 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 achi eve 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 ; i f 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 two decisional issue s 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 with a waiver to enlistment and induction standards for pre-service drug use - marijuana . The Applicant enlisted with a guaranteed contract for Transportation Field training . The Applicant completed two years and four months of his four-year obligation. The military service record further documents that he is a combat veteran, having served a combat deployment in Al-Anbar Province of Iraq in support of Operation IRAQI FREEDOM from August 200 5 to February 2006 . The Applicant’s official record of service include s three 6105 retention-counseling warnings , one non-judicial punishment for violation of Articles 86 and 92 of the UCMJ , a Summary Court - Martial for violation of unknown articles of the UCMJ , and a Special Court - Martial for the wrongful use, possession, etc of a Schedule I controlled substance- c ocaine (Article 112a), two specification of unauthorized absence (Article 86), for failure to obey lawful order or regulations (Article 92), and for breaking restriction (Article 134). Additionally, while pending administrative separation processing determination, the Applicant was charged with, but not adjudicated in any administrative or punitive forum, for the wrongful use, possession, and introduction of marijuana onto a F ederal installation. The Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs - in writing - as a required function of his waiver process to enlistment . Based on the Article 112(a) violation s , 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 administrative board hearing.

( NDRB Board issue ) - The NDRB noted that the Applicant’s DD Form 293 ( I ssues S tatement) included an inference that the Applicant has mental health concerns related to possible PTSD. T he Applicant should be aware that the VA has announced special VA enrollment access for PTSD and mental health treatment to combat veterans discharged under other than dishonorable conditions (i.e. any discharge better than a Bad C onduct Discharge or a Dishonorable Discharge from a Special or

General Court - Martial) . 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 review of his service and determination of benefits via a Compensation and Pension review 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 service was Honorable and that his difficulty re-adjusting to life outside a combat zone led to his misconduct. The Applicant contends that his discharge characterization of service was inequitable in that a new chain of command did not know him and were not able to compare his current service to his previous service , to include his combat deployment. 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.

Despite a service member’s prior record of service, certain serious offenses, though isolated, warrant separation from the Naval S ervice in order to maintain proper 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 S pecial or G eneral C ourt- M artial. The Applicant’s c ommand opted to pursue a punitive discharge , however, the Trial Judge did not award a discharge as part of the sentence at trial by S pecial C ourt -M artial . As such, the Applicant served his adjudicated confinement and returned to his command. Subsequent to his return to the command, the Applicant was caught - and admitted to - use, possession, and introduction of illegal drugs (marijuana) on a F ederal installation. Based on the seriousness of th e offense committed , the chain of command r ecommended administrative 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. The Separation Authority approved the command’s recommendation for separation and directed the Applicant to be discharged for Misconduct ( D rug A buse) pursuant to paragraph 6210.5 of the Marine Corps Separation and Retirement Manual. The Applicant was discharged on February 23, 2007 . Based on 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 and that the characterization of service received was warranted .

The Applicant contends his problems were attributed to an inability to adjust upon return from a combat zone . 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 found no medical diagnosis of PTSD in the record to support the Applicant ’ s claim , nor did the Applicant produce any medical diagnosis by any competent me ntal health authority to support t his c ontention. The Applicant ’ s Post - Deployment Health Assessment was negative for any indicators for a referral for treatment and there was no documentation of any diagnosis of PTSD in his service or medical record s . The Applicant’s record does reflects that he was seen and was treated by appropriately credentialed m ental health providers from June 2006 until his eventual discharge in February 2007. These evaluations indicated depression, relationship issues, and a possible character disorder with a history of pre-service psychological problems related to anxiety and mood swings. W hile the Applicant may feel that his inability to adjust to a non - combat zone environment was the underlying cause of his misconduct, the record clearly reflect ed willful misconduct that began while he was deployed and continued upon his return. The misconduct of record clearly demonstrated he was unfit for further 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 discharge s given to others in similar circumstances . Relief 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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