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USMC | DRB | 2011_Marine | MD1101407

Original file (MD1101407.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20110511

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)       20020418 - 20020730     Active:

Period of Service Under Review:
Date of Current Enlistment: 20020731     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20050708      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 08 D a y ( s )
Education Level:        AFQT: 34
MOS: 1833
Proficiency/Conduct M arks (# of occasions): /          Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle Pistol -N

NJP:

SCM:

SPCM:

- 20040714 :       Art icle (Wrongful use, possession, etc ., of controlled substance, 3 specifications )
         Specification 1: Wrongful use of marijuana on or about 20040225
         Specification 2: Wrongful use of marijuana on or about 20040329
         Specification 3: Wrongful use of marijuana on or about 20040421
         Article 86 (Failed to go at the time prescribed to his appointed place of duty on or about 20040420)
         Sentence : CONF 5 months (20040714-20040914, 61 days)
         C onvening Authority Action: The sentence is approved and, except for the B ad C onduct D ischarge, ordered executed, but the execution of that part of the sentence extending to confinement in excess of 75 days is suspended for a period of 12 months from the date of this action, at which time, unless the suspension is sooner vacated, the suspended part of the sentence will be remitted without further action.

CC:

Retention Warning Counseling :

- 20040706 :       For violation of A rticle 86, UCMJ. SNM was assigned Company Fire - watch on 20040704 from 0730-1130, 1530-1930, and 2330-0330. SNM showed up for the first set but did not show up for the other two time periods. SNM stated he had to take care of his child and take him to the hospital. SNM lied about this and did not take his child to the hospital. Later that night he was arrested by Newport Police Department for drunk and disorderly. SNM returned to work on 20040706.

Administrative Corrections to the Applicant’s DD 214

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

         Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “ RIFLE EXPERT BADGE, PISTOL MARKSMANSHIP BADGE, NATIONAL DEFENSE SERVICE MEDAL, GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL, PRESIDENTIAL UNIT CITATION-NAVY, PURPLE HEART MEDAL ”
         “ (61) 20040714-20040914 ”

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. Paragraph 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURT-MARTIAL , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications .

C . 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, 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 misconduct of record was the result of stress from depression and anxiety related to Post - Traumatic Stress Disorder (PTSD), and his drug use was an attempt to self-medicate for the symptoms of PTSD . As such , the Applicant contends that his issues warrant consideration as extenuating and mitigating factors to his discharge and the characterization of service he received.

Decision

Date: 20 1 1 1116 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 personal statement; the Applicant stated that he was suffering from PTSD. As such, 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 Applicant entered military service at age 18 on a four - year enlistment with a guaranteed contract of Combat Support Option. The Applicant’s enlistment record reflects entry into military service with a waiver to enlistment and induction standards for pre-service illegal drug use (marijuana) . During the enlistment process, the Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning the Illegal Use of Drugs - in writing - on 18 April 2002 . The Applicant completed approximately two years and two months of that four-year enlistment obligation. The Applicant ’s service record documents a combat deployment as a n Amtra c C rewman in the initial assault into Iraq from March 2003 to 10 April 2003 wherein h e was medically evacuated from theater due to wounds sustained in combat in support of Operation IRAQI FREEDOM I (OIF -I ). The military service record further documents that he was awarded the Purple Heart for wounds received in action on 10 April 2003 while engaged in combat operations against enemy forces in Iraq .

The Applicant’s record of service reflects one paragraph 6105 retention-counseling warning and no nonjudicial punishments for violations of the Uniform Code of Military Justice (UCMJ) . However , the Applicant’s service record reflects conviction by Special Court-Martial for violation of the UCMJ : Article 112a (Wrongful use, possession, etc of controlled substances - 3 specifications of wrongful use of marijuana, as confirmed by N aval D rug L ab urinalysis testing) and Article 86 (Absent without leave - failed to go to his appointed place of duty ). Violation of Article 112 ( a ) 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, c ommanders may also pursue confinement and punitive discharge through a Special or General Court-Martial. In this specific case, the c ommand chose to refer the Applicant to trial by Special Court-Martial instead of opting for the more lenient, non-punitive punishment and adm inistrative discharge process. While pending trial by Special Court - Martial, the Applicant entered into a pre-trial agreement with his command; he pled guilty in a trial by judge alone to the specifications, as charged , in consideration of lenience in confinement from the convening authority . The Applicant was found guilty of the charges specified, was adjudged a Bad Conduct Discharge, confinement for 5 months, and was reduced in rank to E-1 (Private). Based on the pre-trial agreement, all confinement in excess of 75 days was suspended, for a period of six months, and, unless sooner vacated, would be remitted without further action. The case was reviewed and affirmed by the U.S. Navy–Marine Corps Court of Criminal Appeals and, as such, the Bad Conduct Discharge was ordered executed.

(Decisional Issues) (Clemency/Equity) PARTIAL CLEMENCY WARRANTED. The Applicant contends that his misconduct of record was the result of stress from depression and anxiety related to PTSD, and his drug use was an attempt to self-medicate for the symptoms of PTSD . As such , the Applicant contends that his issues warrant consideration as extenuating and mitigating factors to his discharge and the characterization of service he received. With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency - an act of leniency that reduces the severity of the punishment imposed. Additionally, r elevant and material facts , as stated in a trial by court-martial , are presumed by the NDRB , to be established facts. As such, the Applicant’s case was considered under the pertinent standard of equity to determine if any factors in this particular case mer ited clemency. The Applicant entered active duty service with a pre-service drug use waiver and counseling , in writing , that he fully understood the Marine Cor ps Policy on illegal drug use. T he Applicant was found guilty at trial by S pecial C ourt -M artial for violating Article 112(a) of the UCMJ for the illegal use of a controlled substance - marijuana (on multiple occasions) ; he received a Bad Conduct Discharge , reduction in rank, and c onfinement. Due to the positive urinalysis for illegal drugs, the Applicant was referred for substance abuse screening and treatment . Based on th is clinical evaluation, the Applicant entered into a partial hospitalization treatment program for 30 days with a diagnosis of THC dependence. While undergoing treatment for his drug dependence, he was diagnosed (in-service) with PTSD and was started on a treatment program. Since discharge, the VA has evaluated the Applicant and the initial diagnosis of PTSD was affirmed . T he Applicant received an overall disability rating of 90% from the VA for the following: 70% disability - PTSD; 40% disability - Traumatic Brain Injury; 30% disability - Shrapnel Scarring to the Face.

The Applicant contends his PTSD was a mitigating factor in his misconduct and that he used marijuana to manage the symptoms , a t that time, of his undiagnosed PTSD. The Applicant tested positive on numerous urinalysis tests for controlled substances . H e was aware that he had been caught wrongfully using a controlled substance after his first urinalysis , yet he chose to continue using illegal substances in violation of the UCMJ and Marine Corps Policy instead of seeking help from ap propriately credentialed health care providers. Based on the facts known at the time of the misconduct, the NDRB determined that the d eliberate and repetitive violations of the UCMJ warranted punitive action vice administrative processing; as such, the court - martial and resultant Bad Conduct Discharge was appropriate and warranted. However, since discharge, the Applicant has received continued evaluat ion and treat ment to determine the severity of his PTSD and the e ffect on the Applicant.

Based on a review of the medical evidence of record , the verbatim record of trial by S pecial C ourt -M artial , and the unique nature and circumstances of this case, the NDRB determined the Applicant’s diagnosed PTSD was a contributing and mitigating factor associated with his in-service misconduct as related to his Special Court - Martial on 14 July 2004 . T he NDRB does not consider a diagnosis of PTSD as a reason to completely absolve the Applicant of his misconduct but did determine that some measure of clemency was warranted. Based on equity, the NDRB voted unanimously to upgrade the characterization of service to Under Other Than Honorable Conditions but not to change the n arrative reason for separation. Full relief to Honorable is not warranted because of the deliberate and repetitive illegal drug use after testing positive at the first urinalysis. Partial clemency warranted.

Summary: After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record entries, Medical Record documentation , post service veterans treatment records, and the issues submitted for consideration by the Applicant, t he Board found clemency was warranted. Therefore, the awarded characterization of service shall change to UNDER OTHER THAN HONORABLE CONDITIONS, but the narrative reason for separation shall remain COURT MARTIAL. The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his discharge. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Employment and Educational Opportunities, 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 | MD1101407

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