Upgrade.Vet

USMC | DRB | 2011_Marine | MD1102142

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

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20110921

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)       20060412 - 20060515     Active:

Period of Service Under Review:
Date of Current Enlistment: 20060516     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20100409      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 24 D a y ( s )
Education Level:        AFQT: 41
MOS: 3381
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle , , (Iraq) , (w/Campaign Star), , (2) ,

Periods of UA / CONF :

NJP:

- 20090805 :       Article (Wrongful use, possession, etc of a controlled substance; wrongful use of marijuana , 42 ng/ml per urinalysis dated 20090623 )
         Awarded: Suspended:

- 20091120 :      Article ( Wrongful use, possession, etc of a controlled substance - 2 specifications of wrongful use of marijuana [33 ng/ml per urinalysis dated 20090925 and 46 ng/ml per urinalysis dated 2009 1013] ) .
         Awarded : Susp ended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20090806 :       For your illegal use of marijuana as evidenced by a urinalysis given on 20090623

- 20091130 :       For your NJP for Article 112 ( a ) dated 20091128

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:                  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 .

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

Applicant’s Issues

Nondecisional issues: The Applicant seeks an upgrade in the characterization of his service at discharge in order to facilitate employment opportunities and disability benefits from the D epartment of Veterans Affairs.

Decisional issues : The Applicant contends his characterization of service at discharge was inequitable; his misconduct was an isolated incident in what was an otherwise outstanding military career. The Applicant contends that his misconduct of record was the result of post-combat deployment stress and mental health problems , which warrant consideration as extenuating and mitigating factors to his discharge and the characterization of service he received.

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 ’s state ment indicated a concern that he was suffering from symptoms related to Post - Traumatic Stress Disorder (PTSD) from his 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.

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 one decisional issue related to the equity of his discharge for the NDRB’s consideration. Additionally, the NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of both equity and propriety.

The Applicant entered military service at age 19 with waiver to enlistment and induction standards for pre-service drug use (marijuana). The Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs - in writing - on 10 April 2006 as a condition of his enlistment wa i ver process. The Applicant enlisted on an Open Contract and received training as a Food Service Specialist . The Applicant’s military service record documents that he is a combat veteran, having served honorably during two combat deployment s in the A l-Anbar Province of Iraq ( 2007 - Al Qa'im , 2008/2009 - Fallujah) in support of Operation IRAQI FREEDOM . 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’s official record of service includes two paragraph 6105 retention-counseling warnings and two nonjudicial punishment s for violations of the Uniform Code of Military Justice (UCMJ) , specifically, Article 112(a) ( W rongful use, possession, etc of a controlled substance ( marijuana) - three specifications. Based on the Article 112(a) violation s , by service policy, processing for administrative separation was mandatory. When notified of the administrative separation process using the board notification procedure, the Applicant elected his right to consult with a qualified legal counsel , but waived his right to present his case for retention to an administrative hearing board or to provide written matters to the Separation Authority for his consideration . The Applicant was advised in writing that the least favorable characterization of service he could receive was Under Other Than Honorable Conditions and that characterization was what the Commander was recommending. The Separation A uthority reviewed the chain of command’s recommendations and c oncurred; on 9 April 2010 , the Applicant was discharged with a corresponding re-entry code of RE-4B (not recommended for reenlistment, in service drug abuse).

Nondecisional issue - The Applicant seeks an upgrade in the characterization of his service at discharge in order to achieve eligibility for Department of Veterans Affairs (VA) medical benefits and counseling. There is no requirement, or law, that grants re-characterization solely on the issue of facilitating access to VA benefits. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities or employment opportunities. Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge. As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief. The NDRB noted that the Applicant’s DD Form 293 included the Applicant’s request for a change in order to access health care through the U . S . Department of Veterans Affairs (VA). The NDRB cannot grant a change based on this issue; however, 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. 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. Additionally, the VA determines the eligibility for enrollment in its programs independent of the Applicant’s characterization of service as determined by the Marine Corps. The Applicant, as a combat veteran, is encouraged to contact his local VA affairs representative for more information and may request a compensation and pension (C&P) exam to establish his service connected eligibility for possible treatment of PTSD. 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 issues) ( ) . The Applicant contends his misconduct was an isolated incident in what was an otherwise outstanding military career with combat service . The Applicant contends that his misconduct of record was the result of post-combat deployment stress and mental health problems .

Propriety - The Applicant was found guilty of violating Article 112(a) ( W rongful use, possession, etc of a controlled substance) at two nonjudicial punishments. The basis for establishing that the Applicant had committed the offense was Naval Drug Lab Testing: 28 June 2009 - THC (marijuana) 42 ng/ml; 25 September 2009 - THC (marijuana) 33 ng/ml; and 13 October 2009 - THC (marijuana) 46 ng/ml. By service policy, confirmed illegal drug use mandates processing for administrative separation. The Applicant’s service record reflects that he was advised properly on the separation recommendation by his chain of command; he was afforded the opportunity to exercise his rights and acknowledged all such in writing, to include waiving his right to present his case for retention to a n administrative board of members. The Separation Authority reviewed the evidence of record and determined that it satisfied the requirements as outlined in the applicable regulatio n ; accordingly, he directed the Applicant be discharged. He directed that the Applicant be assigned the corresponding reentry code of RE-4B (not recommended for reenlistment - in service drug abuse). The NDRB determined that the evidence of record did establish the basis for discharge and that the Separation Authority actions were proper. Relief denied.

Equity Issue 1 - 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. Violation of Article 112(a) is one such offense requiring mandatory processing for administrative separation, regardless of grade, performance, service record, combat service, 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 command did not opt to pursue a punitive discharge but instead chose the more lenient, nonpunitive administrative discharge process following two nonjudicial punishments for illegal drug use . Based on the seriousness of the offense s and the repetitive nature of the misconduct, the chain of command recommended separation with an Under Other Than Honorable Conditions characterization of service at discharge. Relief denied.

Equity Issue 2 - The Applicant contends his problems were attributed to PTSD and an inability to adjust upon return from a combat zone. 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 requested and received the Applicant ’s service medical record and found no in-service medical diagnosis of PTSD , nor did the Applicant produce any post-service medical diagnosis by any competent mental health authority to support this contention. T he Applicant ’ s medical record does indicate that a screening for PTSD was conducted and that the Applicant’s responses were positive for indicators of possible PTSD , warranting a recommendation for referral to a mental health treatment provider for an evaluation and diagnosis if symptoms did not resolve. The Separation Authority (Commanding General, 1st Marine Division) reviewed this documentation and specifically considered it in his decision to discharge the Applicant; he further recommended that the VA approve any future treatment for PTSD made by the Applicant. After a careful review of the Applicant’s combat deployment history and in-service me dical records , coupled with his personal statement to the NDRB , the NDRB determined the contention of post-deployment stress and mental health problems w ere not mitigating factors to his misconduct ; the record clearly reflect ed willful misconduct and demonstrated that he was unfit for further service. Relief denied.

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. A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. 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 expected of members of the Naval Service. The Applicant’s record clearly documents his acceptable conduct while deployed in a combat zone; for this service, he received the Iraqi Campaign Medal and the Marine Corps Good Conduct Medal . However, the record of service does not document any personal awards received during combat or peacetime service that would constitute service that was so meritorious that it would reverse his multiple act s of illegal drug use - which did constitute a significant departure from the conduct expected of service members. After a thorough review of 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. In reviewing 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. An upgrade or change would be inappropriate. 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

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USMC | DRB | 2011_Marine | MD1102142

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