Search Decisions

Decision Text

USMC | DRB | 2011_Marine | MD1101680
Original file (MD1101680.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110628
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)       20060907 - 20070903     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20070904     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20 10 0804      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 01 D a y ( s )
Education Level:        AFQT: 81
MOS: 0321
Proficiency/Conduct M arks (# of occasions): 4.0 (8) / 3.7 (8)    Fitness R eports:

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

NJP:

- 20100701 :       Article (UA 0730, 20100614 - 1930, 20100615, 1 day)
         Article ( Wrongful use, possession, etc of a controlled substance - marijuana)
         Awarded: Suspended:

SCM:

- 20100407 :       Art icle ( Wrongful use, possession, etc of a controlled substance - marijuana ( 1012 ng/ml ) )
         Sentence : (20100407-20100430, 24 days)

SPCM:    CC:      Retention Warning Counseling :

Administrative Corrections to the Applicant’s DD 214

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

          “ 02 10 07 ”
         “ (24) 20100407-20100430, (1) 20100614 ”

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 .

C. U.S. Code, Title 10, Section 1553 (d) (1) and (d) (2).



DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

 Decisional issues : The Applicant contends that his discharge characterization of service was inequitable: (1) H e served 35 months honorably without any adverse action; (2) his service in Afghanistan in support of O peration Enduring Freedom (O EF ) warrants consideration; (3) the Applicant made a single isolated mistake, which was mitigated by his Post - Traumatic Stress Disorder (PTSD) .

Decision

Date: 20 1 1 1019           Location: Washington D.C .         R epresentation :

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

 I n 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 three decisional issues for the NDRB’s consideration. The Applicant entered military service at age 1 8 with waiver to enlistment and induction standards for pre-service drug use - marijuana. The Applicant enlisted with a guaranteed contract for Reconnaissance Marine training. The Applicant completed two years and eleven months of his four-year obligation. The military service record further documents that he is a combat veteran, having served a combat deployment in the Helmand Province of Afghanistan i n support of OEF from A pril to December 200 9. The Applicant’s official record of service includes a summary court martial for violation of the Uniform C ode of Military Justice (UCMJ), Article 112(a) (Wrongful use, possession, etc of a controlled substance – marijuana) as confirmed by a N aval D rug L ab positive urine sample test result. Based on the Article 112(a) violation, by service policy, processing for administrative separation was mandatory. Wh ile pending administrative separation processing , the Applicant was subject to a nonjudicial punishment for further violations of the UCMJ , specifically, violation of Article 86 (Absence without leave - absenting himself from his command, without authority, and remaining so absent in excess of 24 hours) and a second violation of Article 112(a) ( W rongful use of marijuana). 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 on 06 September 2006 . 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 to present his case for retention or characterization of service .

The NDRB noted that the Applicant’s DD Form 293 included an inference that the Applicant has mental health concerns related to PTSD. The 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). 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 Exam 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 discharge characterization of service was inequitable: (1) H e served 35 months honorably without any adverse action; (2) his service in Afghanistan in support of OEF warrants consideration; and (3) , the Applicant made a single isolated mistake, which was mitigated by his PTSD .

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 ex pected of members of the Naval S ervice. Despite a service member’s prior record of service, to include combat service, certain serious offenses, though isolated, warrant separation from the Naval Service in order to maintain good 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’s c ommand opted to pursue a punitive discharge; however, the Applicant submitted a pre-trial agreement in which the charges were reduced to an administrative summary court - martial in e x change for his plea of guilty and waiver of his administrative right to a hearing board. As such, the Applicant served his adjudicated confinement of 30 days and returned to his command to be processed for administrative separation . Subsequent to his return to the command, the Applicant was caught a second time using illegal drugs after returning from a period of unauthorized absence. Based on the seriousness of the offense committed, coupled with the repeat violations, the chain of command recommended 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 (Drug Abuse) pursuant to paragraph 6210.5 of the Marine Corps Separation and Retirement Manual. The Applicant was discharged on 04 August 2010 . 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 PTSD . 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 mental health authority to support this contention. 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. Prior to administrative processing for separation, the Applicant was screened for both PTSD and TBI (traumatic brain injury). The medical record documents that he was found to have suffered a TBI due to concussive effects during his combat deployment , but that the condition had fully resolved and was not contributory to his misconduct of record (evaluation dated 10 May 2010). Furthermore, during this medical evaluation, the Applicant denied any symptoms of PTSD . While 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 reflected willful (and repeated) misconduct , which 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 discharges given to others in similar circumstances. Accordingly, relief as requested, is 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

Similar Decisions

  • USMC | DRB | 2013_Marine | MD1300650

    Original file (MD1300650.rtf) Auto-classification: Denied

    ” 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. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or...

  • USMC | DRB | 2011_Marine | MD1101984

    Original file (MD1101984.rtf) Auto-classification: Denied

    of controlled substances - wrongful use of steroids)Awarded: RIR FOP RESTR EPD Suspended: SCM:NONE SPCM:CC: Retention Warning Counseling:NONE Types of Documents Submitted/reviewedRelated 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...

  • USMC | DRB | 2010_Marine | MD1001152

    Original file (MD1001152.rtf) Auto-classification: Denied

    The NDRB determined that the discharge action was proper; as such, relief based on propriety is not warranted.Despite a service member’s prior record of service, certain serious offenses, though isolated, warrant separation from the Naval Service in order to maintain good order and discipline. The Applicant was re-processed for administrative separation; on 24 February2009,the discharge action was approved - Misconduct (Drug Abuse) - and the Applicant was awarded an Under Other Than...

  • NAVY | DRB | 2010_Navy | ND1001370

    Original file (ND1001370.rtf) Auto-classification: Denied

    On 04 June 2004, the Separation Authority directed the Applicant’s discharge with a General (Under Honorable Conditions) characterization of service due to Misconduct (Drug Abuse); he further directed that the Applicant be assigned an RE-4 re-entry code (not recommended for reenlistment).The Applicant provided additional documentation ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is...

  • USMC | DRB | 2011_Marine | MD1102142

    Original file (MD1102142.rtf) Auto-classification: Denied

    The NDRB determined that the evidence of record did establish the basis for discharge and that the Separation Authority actions were proper. ” 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. If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other...

  • USMC | DRB | 2011_Marine | MD1100650

    Original file (MD1100650.rtf) Auto-classification: Denied

    After a careful review of the Applicant’s combat deployment history, in-service mental health issues,and diagnosed PTSD, coupled with the sustained meritorious proficiency and conduct markings (4.5/4.5 average over 8 periods, prior to misconduct), the NDRB determined the Applicant’s PTSD and associated symptoms were mitigating and contributory factors in his misconduct.Given the facts of the record, the information provided by the Applicant, and the Applicant’s combat service, the NDRB...

  • USMC | DRB | 2012_Marine | MD1200206

    Original file (MD1200206.rtf) Auto-classification: Denied

    After a careful review of the Applicant’s combat deployment history and in-service medical records, coupled with his personal statement to the NDRB, the NDRB determined the Applicant’s contention of post-deployment stress and mental health problems were not mitigating or contributory factors to his misconduct; the record clearly reflected willful misconduct and demonstrated that he was unfit for further service.When the quality of a member’s service has met the standards of accepted conduct...

  • USMC | DRB | 2012_Marine | MD1200202

    Original file (MD1200202.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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/ToCongress member: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD...

  • USMC | DRB | 2012_Marine | MD1200790

    Original file (MD1200790.rtf) Auto-classification: Denied

    Based on the Applicant’s record of service during the period under review, 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.As the Applicant requested a review of his discharge in order to facilitate access to VA benefit programs for help with PTSD issues, the NDRB conducted a...

  • USMC | DRB | 2011_Marine | MD1100172

    Original file (MD1100172.rtf) Auto-classification: Denied

    The Applicant seeks an upgrade in characterization of service at discharge from a Bad Conduct Discharge to an Honorable discharge.The Applicant entered active duty service with a pre-service drug use waiver and counseling in writing that he fully understood the Marine Corps Policy on illegal drug use. The Applicant provided his post-service mental health treatment records that document he was evaluated and diagnosed with chronic PTSD.Though the Applicant had misconduct involving the illegal...