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USMC | DRB | 2011_Marine | MD1101821
Original file (MD1101821.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110726
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)       20040414 - 20041128     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20041129     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20081205      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 7 D a y ( s )
Education Level:        AFQT: 74
MOS: 0612
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle (2)

Periods of CONF :

NJP:

- 20070316 :      Article (Failed to return to liberty at the prescribed time following a 24 - hour liberty call)
         Article 113 (Found by his relief undressed and asleep in his sleeping bag with his weapon unsecured)
          Awarded: Suspended:

- 20081029 :      Article (UA from 20081015 - 2008102 1 , 6 days)
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling:

- 20070316 :       For SNM was found guilty at Company level NJP for violating Art icles 86 and 113 .
- 20081203:      For being negligent which resulted in losing your CIF gear issue.

Administrative Corrections to the Applicant’s DD 214

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

          “ (6) 20081015 - 20081021 ”

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 the government violated his due process rights by using urinalysis results obtained by a C ommand Directed urinalysis as a basis for an unfavorable characterization.
2.       The Applicant contends the government violated his due process rights by processing him on the basis of Pattern of Misconduct when he was not properly counseled under MCO P1900.16F.
 3.       The Applicant contends he suffered from Post-Traumatic Stress Disorder (PTSD), depression , and anxiety issues that required medical and mental health counseling, which w ere not adequately presented to the board as mitigation due to the denial of a continuance. He adds that the denial of a continuance is another occasion where his due process rights were violated.
4.       The Applicant contends his discharge was improper , because the Senior Member of the administrative separation board was a Reserve Officer and, therefore, ineligible to sit on the administrative separation board of an active duty Marine.
5.       The Applicant contends his discharge was improper and inequitable , because his due process rights and right to effective counsel w ere denied when the very reasonable continuance request was denied for the sole purpose of forcing the conduct of the administrative separation board through before his end of active service.
6.       The Applicant believes his p ost-service conduct, as evidenced by his steady employment, college attendance, drug rehabilitation , drug-free existence, and no criminal involvement with law enforcement, warrant considerati on for upgrading his discharge.

Decision

 Date: 20 1 20202            Location: Washington D.C .         R epresentation :

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

 As a result of the Applicant’s claim of PTSD, 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 Applicant deployed in sup port of Operation Iraqi Freedom in 2008.

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 two non-judicial punishments for o f the Uniform Code of Military Justice (UCMJ): Article ( Unauthorized a bsence, 2 specifications ) and Article 113 ( Misbehavior of a sentinel , ) . The Applicant also violated Article 112a (Wrongful use of a controlled substance); however, this offense was not adjudicated at NJP or court-martial proceedings. The Applicant a pre-service drug waiver for using illicit drugs prior to entering the Marine Corps . He acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 23 M arch 200 4 . Based on the Article 112a violation , processing for administ rative separation is mandatory. When notified of a dministrative separation processing , the Applicant right to request an administrative board. He waived his rights to consult with a qualified coun sel and submit a written statement . He did , however, have counsel during the administrative board. By a vote of 3 to 0, the board determined the Applicant did commit misconduct due to drug abuse, recommended discharge, and recommended his service be characterized as Under Other Than Honorable Conditions .

: (Decisional) ( ) . The Applicant contends the government violated his due process rights by using urinalysis results obtained by a Command Directed urinalysis as a basis for an unfavorable characterization. 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 claim. According to regulations, a Command Directed urinalysis is ordered by the c ommander whenever a specific member’s behavior

or conduct gives rise to a reasonable suspicion of dr u g abuse or whenever drug use i s suspected within a unit. It also states that Command Directed examinations may be order ed to determine competence for duty and the need for counseling, rehabilitation, or other medical treatment. The Applicant directs the NDRB’s attention to MCO 1900.16F PARA 1004.e(1) , which states that urinalysis results obtained during fitness for duty examinations, if not based on probable cause or valid medical purpose s , cannot be used as the basis for unfavorable characterization , except when used for impeachment or rebuttal in any proceeding in which evidence of drug abuse has been first introduced by the Marine. After reviewing all possible reasons for being given a urinalysis, according to the Applicant, he concluded through presumptive rationale , as supported by the evidence of the DD 2624 , that fitness for duty was the only remaining reason for the urinalysis. The Applicant did not provide a copy of the DD 2624 to which he refers nor was there a copy found in his service record. The Board found no evidence in the record that explain s why a C ommand D irected urinalysis was given. Therefore, the NDRB presumes regularity in that a C ommand D irected urinalysis was warranted and the use of the results as the basis for the unfavorable characterization was proper. The Applicant’s presumptive rationale without the corroboration of substantial and credible documentary evidence was not sufficient to overcome the government’s presumption o f regularity in this case. Relief denied .

: (Decisional) ( ) . The Applicant contends t he government violated his due process rights by processing him on the basis of Pattern of Misconduct when he was not properly counseled under MCO P1900.16F. He argues that nowhere in the relevant counseling entries does it inform him that he could be administratively separated. In the 16 March 2007 counseling warning, the Applicant is informed that failure to take corrective action could result in “possible limitation of further service. ” Although this statement is not verbatim to the example provided in the regulation, the NDRB is convinced that the statement convey ed t h e option of possible separat ion if he fail ed to take corrective action . T he Applicant was notified that he was being processed for administrative separation due to Misconduct - D rug A buse and Misconduct - P attern of M isconduct . However, his primary reason for being separated from the Marine Corps was drug abuse. The NDRB determined that relief based on this issue is not warranted . Relief denied.

: (Decisional) ( ) . The Applicant contends he suffered from PTSD, depression , and anxiety issues that required medical and mental health counseling, which were not adequately presented to the board as mitigation due to the denial of a continuance. He adds that the denial of a continuance to present such matters was a violation of his due process rights. On 4 December 2008, after reviewing and considering the concerns addressed in the letter of deficiency submitted by the counsel for the respondent (the Applicant) and reviewing the Record of the Board Hearing, the I MEF commander approved the board’s findings and recommendations. The NDRB reviewed the available evidence and determined that the Applicant’s due process rights were not violated.

As to the issue that the Applicant suffered from PTSD, depression, and anxiety issues that required medical and mental health counseling and could have mitigated his misconduct, the NDRB completed a thorough review of the Applicant’s medical and service records, including his post-service medical records from the VA. In the VA records are several notations that the Applicant suffered from, and continues to suffer from, depression. A 9 Sep 2009 entry describes the Applicant with “major depression with possible contribution from substance induced mood disorder and possible PTSD.” Nowhere in the in-service or post-service records are there any indications that the Applicant was not responsible for his behavior or should not be held accountable for his misconduct. After a complete review of the medical and service records, the NDRB determined that the Applicant’s claims of PTSD, depression, and anxiety did not mitigate his misconduct. Therefore, the NDRB concluded that relief based on this issue was not warranted. Relief denied.

Issue 4: (Decisional) ( ) . The Applicant contends his discharge was improper , because the Senior Member of the administrative separation board was a Reserve o fficer and, therefore, ineligible to sit on the administrative separation board of an active duty Marine. According to regulations, w hen the respondent is an active duty member, the senior member must be on the active duty list of the service. The exception is w hen no active duty list officer is reasonably available . In such instances, the convening authority may substitute a Reserve officer designated for duty in the Active Reserve Program who has served on continuous active duty for more than 12 months immediately before appointment to the board. The Applicant a rgues that , since the board took place at Camp Pendleton and was convened by the MEF Headquarters Group, there is no reasonable argument for the command to use th e exception and appoint a Reserve officer . Based on the available evidence, the NDRB could not determine if the appointment of a Reserve officer as the senior member of the administrative separation board was proper, nor did the Applicant provide any evidence to support his contention. However, even if the appointment was improper, the NDRB determined that the board’s result would have not changed. Therefore, relief denied.


Issue 5: (Decisional) ( ) . The Applicant contends his discharge was improper and inequitable , because his due process rights and right to effective counsel w ere denied when the continuance request was denied for the sole purpose of forcing the conduct of the administrative separation board through before his end of active service. On 4 December 2008, after reviewing and considering the concerns addressed in the letter of deficiency submitted by the counsel for the respondent (the Applicant) and reviewing the Record of the Board Hearing, the I MEF commander approved the board’s findings and recommendations. Based upon the available evidence and after conducting a thorough review of the proceedings, the NDRB determined that his due process rights and his right to effective counsel were not violated and that his separation proceedings were proper and equitable. There was no indication that the process was rushed to conclude his separation proceedings before the end of his active obligated service. Therefore, the NDRB concluded that relief based on this issue was n ot warranted. Relief denied.

Issue 6 : (Decisional) ( ) . The Applicant believes his post-service conduct, as evidenced by his steady employment, college attendance, drug rehabilitation, drug-free existence, and no criminal involvement with law enforcement, warrant s 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 and supported by documentation. 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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