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USMC | DRB | 2011_Marine | MD1101200

Original file (MD1101200.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20110412

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 - 20020603     Active:

Period of Service Under Review:
Date of Current Enlistment: 20020604     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20050210      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 06 D a y ( s )
Education Level:        AFQT: 47
MOS: 1812
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

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

Periods of UA :

Periods of Confinement: 20041019 - 20041219 (62 days)

NJP:

- 20041013 :       Article ( Failure to obey order or regulation, 2 specifications )
         Specification 1: Admitted to drinking alcohol while attending A lcohol Treatment Facility (A TF ) .
         Specification 2: Admitted to getting drunk while on Conditions of Liberty while at ATF .
         Awarded : Susp ended:

SPCM:

- 20041019 :       Art icle (Wrongfully use , possess, etc of a schedule I controlled substance – cocaine 334 ng/ml )
         Sentence : CONF 75 days (20041019-20041219, 62 days)
         CA: Sentence approved and will be executed, but the execution of that part of the sentence extending to all confinement in excess of 30 days is suspended for a period of 12 months from the date of this action, at which time, unless sooner vacated, the suspended portion will be re mitted without further action.
Suspension of confinement in excess of 30 days was rescinded, the full confinement period was ordered executed.

SCM:                                CC:                        Retention Warning Counseling :

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: (1) The Applicant contends that his discharge characterization of service was inequitable , because his misconduct of record was an effort to address his symptoms of Post - Traumatic Stress Disorder (PTSD). (2) The Applicant contends that his characterization of service at discharge was inequitable in that it was overly harsh and his meritoriou s service was not considered.

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 board 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 two decisional issues 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 27 with moral waiver s to enlistment and induction standards for pre-service DUI, pre-service drug use (marijuana), and a pre-service juvenile felony offense . The Applicant enlisted with a guaranteed contract Combat Support Option. The Applicant’s military service record further documents that he is a combat veteran, having served honorabl y during a combat deployment in the Al-Anbar Province of Iraq in support of Operation IRAQI FREEDOM. Moreover, the Applicant received the Combat Action Ribbon for his individual actions against opposin g enemy forces while deployed. The Applicant’s official record of service did not include any 6105 retention-counseling warnings , however, he was subject to a n administrative Non j udicial Punishment for violation of Article 92 of the Uniform Code of Military Justice (UCMJ) – two specifications of failure to obey an order or regulation while attending an alcohol rehabilitation treatment program . Additionally, the Applicant’s service record reflects conviction by a Special Court-Martial for violation of the UCMJ , specifically, violation of Article 112a (Wrongful use, possession, etc of a schedule I controlled substance (cocaine – 334 ng/ml as confirmed by N aval D rug L ab urinalysis testing). Violation of Article 112a is an offense requiring mandatory processing for separation, regardless of time in service or grade, and usually results in , at a minimum, administrative separation with an unfavorable characterization of discharge. Based on the requirement to maintain good order and discipline in the service, Commanders may also pursue confinement and punitive discharge through a Special or General Court-Martial. In this specific case, the Command chose to refer the Applicant to trial by Special Court-Martial instead of opting for the more lenient, nonpunitive punishment and administrative discharge process. The Applicant was found guilty of the charge as specified; he was adjudged confinement for 75 days, ordered a forfeiture of pay, and was reduced in rank to E-1 (Private). Based on a pre-trial agreement, all confinement in excess of 3 0 days was suspended, for a period of six months, and, unless sooner vacated, would be remitted without further action. However, due to continued misconduct during the period of the pre-trial agreement , the deferment of the adjudged confinement in excess of thirty days was rescinded and was ordered executed.

(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. T he 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. T he 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) ( ) . Despite a service member’s prior record of service, certain serious offenses warrant separation from the Naval Service 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 special or general court-martial. The Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs - in writing - on 2 9 April 200 2 . The Applicant’s command chose to pursue punitive discipline through trial by S pecial C ourt -M artial . The Military Judge did not award a Bad Conduct Discharge; however, due to the serious and aggravating nature of the Applicant’s drug use (in the field while conducting M1A1 tank main gun live fire and maneuver qualifications), the Command forwarded a recommendation for separation to the Commandant of the Marine Corps , who is the Separation Authority in any case wherein separation is being pursued for the same offense that was tried by Special Court - Martial and the member was not award ed a punitive discharge. The Separation Authority reviewed the evidence of record and the gravity of the charges and concurred. The Separation Authority , acting for the Secretary of the Navy, approved the command’s recommendation and directed the Applicant to be discharged for Misconduct (Drug Abuse) pursuant to paragraph 6210.5 of the Marine Corps Separation and Retirement Manual.

The Applicant contends that his misconduct of record was an effort to address his symptoms of PTSD and that his discharge was overly harsh and his meritorious service was not properly considered. T he 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 was unable to locate the Applicant’s in-service medical records to determine if there was an in-service diagnosis or treatment for PTSD. However, the VA did provide post-service treatment records that documented a final diagnosis of Major Depressive Disorder (recurrent, severe), without psychotic features . Treatment records did indicate a secondary diagnosis of PTSD during initial consultation and treatment, but was removed subsequently from the Applicant’s final diagnosis and treatment plan. Moreover, though the Applicant may feel that PTSD was the underlying cause of his misconduct, the record of service clearly reflects willful and egregious misconduct that demonstrated he was unfit for further service ; the Applicant was found to be using cocaine while conducting main battle tank live fire and maneuver gunnery exercises just prior to the unit’s deployment to Iraq.

Characterization of service at discharge is the recognition of a Marine’s performance and conduct during an enlistment. 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 service. The Applicant’s record of service reflects combat service, meritorious promotion, and high proficiency and conduct markings; however, these a chievements were overcome by a serious offense, which warranted separation to maintain safety , good order , and discipline. Based on the Applicant’s record of service, the NDRB determined that the Applicant had engaged in conduct involving one or more acts 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 was proper, was equitable, was warranted, and was and is consistent with the characterization of discharges 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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USMC | DRB | 2011_Marine | MD1101200

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