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USMC | DRB | 2011_Marine | MD1101138
Original file (MD1101138.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110329
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)       19930526        Active:            19930527 - 19931124
         USMCR (DEP)       19970314 - 19970402

Period of Service Under Review:
Date of Current Enlistment: 19970403     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19990106      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 04 D a y ( s )
Education Level:        AFQT: 68 / 75
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:
- 19971002 :       Article (Failure to obey order or regulation)
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 19971220 :       For poor judgment and lack of maturity for not allowing for enough time to return to the area after a 96, knowing the BN was to deploy on a UDP. Applicant missed his flight, and had to fly with another company.

NDRB Documentary Review Conducted (date):        20071101
NDRB Documentary Review Docket Number:   MD07-00508
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.

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. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 January 1997 until 31 August 2001.

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 contends his admission of in - service drug abuse was protected under the limits of patient-physician confidentiality and should therefore be inadmissible in misconduct drug abuse separation proceedings.
2.       Applicant contends he never self-referred for drug use.
3.       Applicant contends his misconduct was an isolated incident in an otherwise honorable period of service.
4.       Applicant contends he sought command assistance for his mental health issues to no avail for months prior to his misconduct.
5.       Applicant contends his post - service conduct warrants consideration.
6.       Applicant contends he was not afforded due process with regards to his separation.
Decision

 Date: 20 1 2 0613            Location: Washington D.C .         R epresentation :

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

 The N aval Discharge Review Board ( 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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant identif ied six decisional issues to the N D RB . T he NDRB did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included 6105 counseling warning and for o f the Uniform Code of Military Justice (UCMJ): Article ( Failure to obey order or regulation , ) . 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 14 M arch 1997 . Based on SECNAVINST 53 00.28 and the Marine Corps Separation and Retirement Manual (MARCORSEPMAN), pr ocessing for adminis trative separation is mandatory, even for self-admission of drug use. When notified of administrative separation processing using the procedure, the Applicant rights to consult with a qualified counsel, submit a written statement , and request an administrative board .

: (Decisional) ( ) . The Applicant contends his admission of in - service drug abuse was protected under the limits of patient-physician confidentiality and should therefore be inadmissible in misconduct drug abuse separation proceedings . Additionally, the Applicant contends he never self-referred for drug use. According to Paragraph 6210, MISCONDUCT , paragraph 5. Drug Abuse, subparagraph c, of the MARCORSEPMAN, effective 31 January 1997 until 31 August 2001, “Self-referral for drug use constitutes confirmation of illegal drug abuse and requires a Marine to be processed for administrative separation. The Voluntary Drug Exemption Program is no longer applicable. However, a Marine ’ s voluntary submission to a DoD treatment and rehabilitation program, and evidence voluntarily disclosed by the Marine as part of the course of treatment in such a program may not be used against the Marine on the issue of characterization of service. This limitation does not apply to: (1) The introduction of evidence for the purpose of impeachment or rebuttal in any proceeding in which evidence of drug abuse has been first introduced by the Marine.” In other words, because he was not referring himself to drug and alcohol treatment, his admission was still admissible in administrative separation proceedings. Furthermore, military medical record content does not enjoy confidentiality status from Commanding Officers when conditions warrant further investigation, especially in cases involving violations of service instructions or orders. The Applicant pursued medical care for complaints of mental health issues unrelated to any drug use and an inability to contract for safety. The record also reflects that the Applicant could not wait until after the weekend when he was to be seen during his normally scheduled mental health appointment at Division Psychiatry. During this visit , the Applicant admitted to the attending physician his extensive drug use. The command began mandatory processing after receiving this information.


Regarding the Applicant’s claim that he never self-referred, the claim is correct but remains immaterial to the discharge. His drug use was discovered through self-admission via Naval Hospital Camp Lejeune. T he Staff Judge Advocate of 2d Marine Division during his review of the administrative separation proceedings s ummarized , “per the reference, SNM’s voluntary admissions as part of the DoD treatment and rehabilitation program for drug abuse may not be used against him on the issue of characterization of service. However, his prior admissions of multiple drug abuse during his current enlistment, made during a psychiatric evaluation conducted during a hospitalization for suicidal ideations, are fully admissible and warrant an OTH characterization.” As a result the NDRB determined a characterization upgrade was not warranted. Relief denied.

: (Decisional) () . The Applicant contends his misconduct was an isolated incident in an otherwise honorable period of service. The Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation. The characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation. Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition. Based on the Applicant’s record of service, the NDRB determined the Applicant 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 the awarded characterization of service was warranted. Additionally, despite a service member’s prior record of service, certain serious offenses warrant separation from the Marine Corps to maintain proper order and discipline. Violation of Uniform Code of Military Justice Article 112a (Wrongful use, possession of controlled substances) requires mandatory processing for administrative separation regardless of grade, performance, or time in service. The NDRB determined an upgrade in characterization was not warranted. Relief denied.
Issue 4: (Decisional) ( ) . The Applicant contends he sought command assistance for his mental health issues to no avail for months prior to his misconduct. The Applicant contends his disciplinary problems were the result of stress caused by his environment, family upbringing, and mental health state. The Applicant’s medical record did reflect visits with the Chaplain to discuss his issues , but the Applicant stated it was unproductive. The NDRB recognizes that serving in the military is challenging. Most service members, however, serve honorably and therefore earn their Honorable discharges. In fairness to those service members, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. After hearing the Applicant’s testimony, t he NDRB determined the Applicant’s personal problems and subsequent attempts to seek additional assistance d id not warrant relief because of the serious nature of the Applicant’s documented admissions of misconduct . R elief denied .

Issue 5: (Decisional) ( ) . The Applicant contends his post - service conduct warrants consideration. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. The Applicant submitted a bachelor’s degree college graduation diploma and transcripts, verification of employment, letters of recommendation from current mental health therapy representatives and former employers, current resume, background check, credit history, and a personal statement. C ompletion 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. Although the Applicant’s post - service efforts are commendable, the NDRB determined that a characterization upgrade was not warranted due to the overall seriousness and extent of the misconduct. Relief denied.

Issue 6: (Decisional) ( ) . The Applicant contends he was not afforded due process with regards to his separation. The Applicant contends he was warned during his administrative separation proceedings by senior enlisted personnel that “if he fought the administrative separation , he was probably going to be here for awhile . ” During the separation proceedings, the Applicant waived his right to consult with counsel, request a hearing before an Administrative Separation Board, and submit a rebuttal to the S eparation Authority . If the Applicant believed there were mitigating circumstances, it was his obligation to contest those charges at the time they were made. During an Administrative Separation Board, he would have had the opportunity to mount a defense against the charges. After hearing the Applicant’s testimony concerning this issue, the NDRB determined that relief was not warranted. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries and discharge process, and personal hearing testimony, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain . The Applicant has exhausted his opportunities before the NDRB but may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm .


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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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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