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USMC | DRB | 2011_Marine | MD1102087
Original file (MD1102087.rtf) Auto-classification: Denied
ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110907
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)       20010821 - 20020707     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20020708     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20060810      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 10 D a y ( s )
Education Level:        AFQT: 77
MOS: 1833
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

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

Periods of U nauthorized A bsence :

NJP:     SCM:              CC:      Retention Warning Counseling :

SPCM:

- 20050331 :       Art icle (Wrongful use , possession, etc., of a controlled substance ( marijuana ) - 2 specifications)
         Specification 1: did, at unknown location, on or about 08 Dec 2004, wrongfully use marijuana; wrongful use confirmed by Naval Drug Lab Urinalysis Testing results
         Specification 2: did, at unknown location, on or about 05 Jan 2005, wrongfully use marijuana; wrongful use confirmed by Naval Drug Lab Urinalysis Testing results
         Sentence : , , (20050331 - 20050424, 25 days)
         C onvening Authority A ction : The s entence is approved and, except for the B ad C onduct D ischarge, ordered executed . As required, the case if forwarded for appellate review of the Bad Conduct Discharge .

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:
Block 11, Primary Specialty, should read: “1833 - Assault Amphibious Vehicle (AAV) Crewmember , 3 years 6 months ”
“ ( 2 5 ) 20050331-20050424 ”
        
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:   
                                             Verbatim Record of Trial by SPCM
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 , and Part V, Para 503, Equity .



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

Applicant’s Issues

 Nondecisional issues: The Applicant seeks clemency through an upgrade in the characterization of his service at discharge in order to facilitate employment opportunities.

Decisional issues : The Applicant contends his drug use was an attempt to self-medicate for the symptoms of P ost- Traumatic Stress Disorder (P TSD ). Furthermore, the Applicant contends that he warrants clemency in the form of an upgrade in the characterization of his service at discharge since the Department of Veterans Affairs (VA) has already upgraded him for their purposes of treatment and assigned h im a disability rating of 40%.

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
The NDRB reviewed the Applicant’s personal statement; the Applicant stated that he was suffering from PTSD related to combat service in Iraq. As such, 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. Additionally, 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.
In reviewing discharges, the NDRB presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. With respect to a discharge adjudged by a 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. In response to the Applicant ’ s clemency request, relevant and material facts as stated in a court-martial specification are presumed by the NDRB to be established facts. The NDRB completed a thorough review of the Applicant’s issues, the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure it met the pertinent standards of equity while determining if any factors in this particular case merited clemency. The Applicant entered military service at age 18 on a four year enlistment with a guaranteed contract of Combat Support, ultimately receiving training as an Assault Amphibious Vehicle Crewman . The Applicant’s enlistment record reflects his entry into the military service with a waiver to enlistment and induction standards for pre-service drug use (marijuana). The Applicant signed the USMC Policy on Illegal Drug Use on 20 August 200 1 , acknowledging that he was fully aware of the Marine Corps Policy of zero tolerance for drug use. Moreover, he acknowledged the consequences of violation of that policy, in writing, as a condition of his entry into active duty service. The Applicant’s service record documents that he is a combat veteran, having served in a combat theater of operations in direct support of an Infantry Battalion during Operation IRAQI FREEDOM from February to November 2003 (OIF I) and again from March to November 2004 (OIF II-1) in the city of Fallujah, Iraq . The military service record further documents that he was awarded the Combat Action Ribbon for his actions while engaged in direct combat operations against enemy forces in the vicinity of Fallujah , Iraq.

The Applicant returned from his second combat deployment in November 2004; on 8 December 2004, and then again on 5 January 2005, he participated in command urinalysis test ing . In accordance with N aval D rug L ab testing results , the Applicant’s samples tested positive for the presence of marijuana. The Applicant’s service record documents he was referred to t rial by Special Court - Martial for violation of the Uniform Code of Military Justice (UCMJ) : Article 112(a) - Wrongful use, possession, etc., of a controlled substance (marijuana) - 2 specifications of wrongful use (8 Dec 04/05 Jan 05) . The Applicant’s trial by Special Court -M artial convened on 31 March 200 5 . A qualified legal defense counsel represented the Applicant throughout his trial by Special Court-Martial. In accordance with a sig n ed Pre- T rial Agreement (PTA), the Applicant requested trial before a military judge alone and pled guilty to the charge as specified in return for a sentence limitation on any adjudged period of confinement . He was found guilty of the specified charge s and was adjudged a reduction in rank to Private (E-1) , ordered confined for a period of 30 days, and was directed to be discharged from the service with a Bad Conduct Discharge . The trial by Special Court - Martial was reviewed and affirmed by the U.S. Navy - Marine Corps Court of Criminal Appeals on 31 August 2005 and the Bad Conduct Discharge was ordered executed. The Applicant was subsequently discharged on 10 August 2006 .

Nondecisional issues : The Applicant seeks clemency through an upgrade in the characterization of his service at discharge in order to facilitate employment opportunities . There is no requirement, or law, that grants re-characterization solely on the issue of facilitating employment opportunities . Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities or facilitating access to Department of Veterans Affairs (VA) benefits . W hen considering a change to a punitive Bad Conduct Discharge , r egulations limit the NDRB’s review solely to a determination of clemency based on the equity of a discharge. As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.

(Decisional Issue ) ( ) PARTIAL CLEMENCY WARRANTED . The Applicant contends his drug use was an attempt to self-medicate for the symptoms of P TSD . Furthermore, the Applicant contends that he warrants clemency in the form of an upgrade in the characterization of his service at discharge since the VA has already upgraded him for their purposes and have assigned him a disability rating of 40% resulting from a diagnosis of PTSD, chronic . Decisions reached by the VA to determine if former service members rate certain VA benefits do not effect previous discharge decisions made by the Naval Service. The criteria used by the VA in determining whether a former service member is eligible for benefits is different than that used by the Marine Corps when determining a membe r’s discharge characterization.

The Applicant contends that his misconduct of record was resultant from diminished coping skills, anxiety, and depression as he was suffering from PTSD, diagnosed while in service, and attempting to self-medicate to avoid the stigma of being seen and treated for mental health issues. 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 reviewed the Applicant ’ s service record and his in-service and post-service medical treatment records and mental health evaluations. The Applicant entered active duty service with a pre-service drug use waiver for marijuana and was advised - in writing - of the Marine Corps Policy on illegal drug use ; he acknowledged that advisement through his witnessed signature . The Applicant deployed to Operation IRAQI FREEDOM in 2003 and again in 2004 and participated in direct combat operations in the city of Fallujah, Iraq . The Applicant’s trial by Special Court - Martial document ed concerns by both the military judge and defense counsel for possible und iagnosed PTSD. M edical records document ed increasing and excessive alcohol use - post-deployment - with anxiety, depression, and sleep disturbance. Following the court - martial, the Applicant was evaluated and diagnosed with PTSD and was prescribed a treatment regimen for PTSD. Since discharge, the Applicant has been evaluated and treated by VA ; he is diagnosed with PTSD ( chronic ) and is currently receiving a 70% disability rating .

A fter an in - depth review of the Applicant’s documentation, the contention of PTSD was established as existing in-service . Following a careful review of the Applicant’s combat deployment history, in-service mental health issues, and diagnosed PTSD, coupled with the post - service VA evaluations and treatment records, 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 determined that the Applicant’s conduct, which forms the primary basis for determining the character of his service, was honest and faithful . However, one or more acts or omissions in his service did constitute a significant departure from the conduct expected of members of the Naval Service. As such, given the facts and circumstances unique to this case, the NDRB determined partial clemency was warranted based on equitable grounds. The NDRB voted 5-0 to upgrade the characterization of service at discharge to Under Other Than Honorable Conditions, but, by a vote of 3 - 2 , no change to the narrative reason for separation is warranted. Partial clemency warranted. Full relief to Honorable or General (Under Honorable Conditions) was not granted, because of the serious nature of the multiple uses of an illegal drug and because an Under Other Than Honorable Conditions characterization of service is more in line with what others have received in similar circumstances.

Summary: After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record entries, Medical Record entries, post - service veteran ’ s treatment records, and the issues submitted for consideration by the Applicant, t he Board found some form of 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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