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USMC | DRB | 2011_Marine | MD1101363
Original file (MD1101363.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110505
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)       20060718 - 20060723     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20060724     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20100426      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 03 D a y ( s )
Education Level:        AFQT: 88
MOS: 5711
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle ACM WITH 1 BRONZE SERVICE STAR

NJP:

- 20070125 :      Article (UA 2200, 20070121 to 1100, 20070122)
         Awarded: Suspended: RIR

- 20090312 :      Article (Willingly disobeyed battalion operational risk management procedures and established liberty limits)
         Awarded: Suspended:

SCM:

- 20091007 :      Article (Drugs , possession of heroin)
          Sentence: (20090918-20091011, 24 days)
- 20091023 :      Article (Drugs - Opiates)
         Sentence: (20091023-20091115, 24 days)

- 20100318 :      Article (UA - failure to go to appointed place of duty 0700, 20100202)
         Article ( Willfully d isobey a lawful order)
          Specification 1: To a ccompany Cpl S_ to the Naval Hospital to receive proper medical attention on 20100202
         Specification 2: To accompany Cpl G_ to the Naval Hospital to receive proper medical attention on 20100202
         Article (Drugs - cocaine)
         Sentence: (20100318-20100410 , 24 days)

SPCM:    CC:

Retention Warning Counseling:

- 20061128 :      For your lack of judgment by purchasing and providing alcoholic beverages to Marines who you know to be under the legal drinking age. In addition to you providing alcohol to Marines under age, you specifically violated the drinking policy during the week. Although you may be of age, you are not allowed to consume alcohol during the week. Your complete disregard of orders and policy set by the Marine Corps and this Detachment will not be tolerated.

- 20070125 :      For unauthorized absence from your appointed place of duty 20070121 until 20070122. You are responsible for being at your ap point ed place of duty when prescribed by those of authority over you. Your failure to obey these orders is a blatant disregard for authority. Your actions are not accepted and will not be tolerated in the Marine Corps.

Administrative Corrections to the Applicant’s DD 214

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

          “ UNDER OTHER THAN HONORABLE CONDITIONS ”
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:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

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

 1.       The Applicant contends his discharge has prevented him from receiving medical attention for in juries and conditions he acquired while on active duty.
2 .       The Applicant contends his discharge was inequitable , because it was based on events that occurred after he had already served 36 months of otherwise honorable service.
3 .       The Applicant provided documentation from his in-service medical record that indicates he has P ost - Traumatic Stress Disorder (P TSD ) , suggesting his PTSD mitigates his misconduct.
4.       The Applicant contends his post-service conduct , as evidenced by his clean and sober lifestyle and plans to become a licensed social worker, warrants consideration for upgrading his discharge.

Decision

 Date: 20 1 2 0202            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 X, Section 1553 (d)(1), the Naval Discharge Review 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 Board presumes regularity in the conduct of g overnment al a ffairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service included 6105 counseling warnings and non-judicial punishments for o f the Uniform Code of Military Justice (UCMJ): Article ( Unauthorized a bsence, ) and Article ( Failure to obey order or regulation, ) . It also included trials by S ummary C ourt- M artial for violations of the UCMJ: Article ( Unauthorized a bsence, ) , Article 91 (Willfully disobeying a lawful order, ), and Article 112a (Wrongful use of controlled substance, 3 specifications) . 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 17 July 2006 . Based on the Article 112a violation , processing for administ rative separation is mandatory . When notified of a dministrative separation processing using the procedure, the Applicant rights to consult with a qualified coun sel, submit a written statement , and request an administrative board .

: (Non - decisional) The Applicant contends h is discharge has prevented him from receiving attention for injuries and conditions acquired while on active duty. The U.S. Department of Veterans Affairs determines eligibility for post-service benefits, not the NDRB . There is no requirement, or law, that grants re-characterization solely on the issue of obtaining v eterans benefits. The NDRB has no authority to upgrade a discharge to enhanc e a former Marine’s e ligibility to receive VA benefits. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

: (Decisional) ( ) . The Applicant contends his discharge was inequitable , because it was based on events that occurred after he had already served 36 months of otherwise honorable service. Despite a service member’s record of service prior to the events leading to his separation, certain serious offenses warrant separation from the Marine C orps to maintain proper order and discipline. Violation of Article 112a is one such offense requiring mandatory processing for administrative separation regardless of performance, grade, or time in service. Wrongful use of a controlled substance usually results in an unfavorable characterization of service, or at a maximum, a punitive discharge, and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. Even though the Applicant had multiple violations of Article 112a of the UCMJ, his command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. The NDRB found the characterization of the Applicant ’ s discharge was equitable and consistent with the characterization given others in similar circumstances. Relief de nied.

: (Decisional) ( ) . The Applicant provided documentation from his in- service medical record that indicates he has P TSD , it m itigates his misconduct. When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline. However, the Board generally does not consider the circumstances surrounding the Applicant’s stated condition, the implied incorrect diagnosis, nor the medical treatment given to the Applicant to be of sufficient nature to exculpate the Applicant’s misconduct. The Applicant had two 6105 counseling warnings and one NJP before he deployed to Afghanistan and three Summary Courts-Martial for multiple UCMJ violations after his return from overseas. After an extensive review of the records and the Applicant’s service, the NDRB determined that his PTSD did not mitigate his multiple instances of misconduct and found that he was fully capable of adhering to the rules and regulations of the Marine Corps. The Marine Corps provides multiple venues for service members experiencing symptoms of PTSD to receive help, yet there is no indication the Applicant sought treatment. Instead, he chose to illegally use controlled substances on multiple occasions. The Board determined that relief based on this issue was not warranted. Relie f denied.

Issue 4: (Decisional) ( ) . The Applicant contends his post-service conduct , as evidenced by his clean and sober lifestyle and plans to become a licensed social worker, warrants consideration for upgrading his discharge. The NDRB is authorized to consider post-service factors in the re-characterization of a discharge. However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question. The Applicant did not submit any post-service documentation along with the DD Form 293 for the Board to evaluate his post-service character and conduct. His statement alone was not sufficient. His efforts needed to have been more encompassing. He could have provided documentation as specified in the Post-Service Conduct paragraph in the Addendum , however, 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. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found 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 for additional information.


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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