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USMC | DRB | 2012_Marine | MD1200086
Original file (MD1200086.rtf) Auto-classification: Denied
ex-, USMCR
Current Discharge and Applicant’s Request
Application Received: 20111013
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:        NONE              Active:   200407 19 - 20050129 (IADT) (HON)
                                    20060515 - 20070501 (Mobilized - PSRC OIF) (HON)
Period of Service Under Review:
Date of Current Enlistment: 20031124     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20091217      H ighest Rank:
Length of Service :
Inactive: Y ea r ( s ) M on th ( s ) 11 D a y ( s )
Active:  Y ea r ( s ) M on th ( s ) 27 D a y ( s )
 Education Level:        AFQT: 56
MOS: 0621
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( corrected ): CAR, , , , AFRM (w/ “ M” device)

Periods of UA / CONF :

NJP:     SCM:     SPCM:    CC:

Retention Warning Counseling :
- 2008 0406 :       For testing positive on command urinalysis screening

Administrative Corrections to the Applicant’s DD 214
The NDRB did note administrative error(s) on the original DD Form 214:

         Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “ COMBAT ACTION RIBBON, IRAQI CAMPAIGN MEDAL, SEA SERVICE DEPLOYMENT RIBBON, GLOBAL WAR ON TERRORISM SERVICE MEDAL, ARMED FORCES RESERVE MEDAL W/"M" DEVICE, PARACHUTIST BADGE, NATIONAL DEFENSE SERVICE MEDAL, RIFLE SHARPSHOOTER BADGE ”

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:             (MOL Service Record Documents)
         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. Marine Corps Reserve Administrative Management Manual, MCO P1001R.1, Chapter 3, Reserve Participation and Administrative Procedures, paragraph 3300.

C. Table 61 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001, Guide for Characterization of Service.

D. 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

 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 that includes a diagnosis of Post - Traumatic Stress Disorder (PTSD) with a 30% disability rating from the Department of Veterans Affairs .

Decision

 Date: 20 1 2 02 02           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.

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 Applicant identified one decisional issue for the NDRB ’s consideration. The NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure his discharge met the pertinent standards of equity and propriety. The Applicant entered military service at age 18 on a n eight year reserve enlistment contract under a guarante e for training as a field radio operator. The Applicant’s enlistment record reflects his entry into the military service with waiver to enlistment and induction standards for pre-service illegal drug use (marijuana) . During the enlistment process, the Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning the Illegal Use of Drugs - in writing - on 21 November 2003. As a Reservist, t he Applicant ’s unit was mobilized , and he was activated in support of Operation IRAQI FREEDOM (OIF) . He completed a successful deployment with a ground combat unit in the Al-Anbar Province in Iraq from 20060902 to 20070322. 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 Ar-Ramadi , Iraq.

The Applicant’s record of service documents no paragraph 6105 retention-counseling warnings or nonjudicial or judicial punishment . However, it does document three positive urinalysis tests for illegal drug usage as confirmed by Naval Drug Lab testing : 20070924 - marijuana (THC) 46 ng/ml; 20071214 - marijuana (THC) 111 ng/ml; and 20080919 - marijuana (THC) 46 ng/ml). As a reservist, the command did not have legal jurisdiction over the illegal drug use, so the Applicant was not prosecuted via nonjudicial or judicial punishment for violation of Article 112( a ) of the Uniform Code of Military Justice (UCMJ). However, the Applicant’s illegal use of drugs did violate the Marine Corps Policy on Illegal Drug Use; as such, processing for administrative separation, by service policy, was mandatory. When notified of administrative separation processing using the notification procedure, the Applicant waived right to consult with a qualified legal defense counsel or to request an administrative hearing board be held in order to present his case for retention or characterization . He did exercise his right to submit a written statement for consideration by the Separation Author ity.

( Decisional Issue ) ( Propriety/ ) . The Applicant contends his misconduct was an isolated incident in what was an otherwise outstanding military career , which includes a diagnosis of PTSD with a 30% disability rating from the Department of Veterans Affairs due to his combat service .

Propriety - The Applicant was found to have wrongfully used a controlled substance through unit sweep drug testing on three separate occasions. Due to the illegal drug use occurring while the Applicant was not in any military status (reservist, not on duty), the command did not have legal jurisdiction over the act for judicial prosecution. Accordingly, the Applicant was processed for administrative separation from the service due to his violation of the Marine Corps Policy on Illegal Drug Use and Secretary of the Navy Instruction 5300.28D. The basis for establishing that the Applicant had committed the offense s were positive confirmation results from Naval Drug Lab t esting: 20070924 - marijuana (THC) 46 ng/ml; 20071214 - marijuana (THC) 111 ng/ml; and 20080919 - marijuana (THC) 46 ng/ml) . By service policy, confirmed illegal drug use mandate d 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 hearing board of members. The Separation Authority reviewed the evidence of record , the Applicant’s personal statement, and the chain of command ’ s recommendations and concurred with the determination that a preponderance of the evidence satisfied the requirements as outlined in the applicable regulation (MARCORSEPMAN - paragraph 6210.5 Misconduct (Drug Abuse); accordingly, he directed the Applicant be discharged. He further directed that the Applicant be assigned a 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. R elief based on propriety is not warranted.

Equity - 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. Based on the seriousness of the offense s and the repetitive nature of the misconduct committed during the Applicant’s enlistment, the chain of command recommended separation with an Under Other Than Honorable Conditions characterization of service at discharge. This recommendation was equitable and is consistent with the characterization of discharges given to others in similar circumstances. Accordingly, relief is denied.

The NDRB reviewed the Applicant’s in-service medical records and the Department of Veterans Affairs diagnosis and treatment records. The VA findings of record document that the Applicant did not meet all of the criteria for PTSD ; the medical-board- certified psychiatrist found the Applicant fully met three of six diagnostic criteria for a diagnosis of PTSD with a fourth criterion improving. As such, the diagnosis psychiatrist stated that he did m eet enough criteria to verify a mild condition of PTSD, which was resolving . A ccordingly, he was awarded a 30% disability rating for PTSD (mild) . Moreover, the appropriately credentialed mental health care provider also documented that the Applicant was function ing well , maintaining employment, attending college full time, and continuin g his reserve military duties. T hough the Applicant contends that PTSD was a mitigating or contributory factor to his misconduct of record (illegal drug use) , the NDRB determined that the record of service clearly reflect ed willful and persistent misconduct , despite warning and advisement from his chain of command , and was not the result of 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. 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 S ervice. The Applicant’s record of service reflects combat service and high proficiency and conduct evaluation markings; however, these excellent achievements were overcome by his misconduct and disregard for the safety of his fellow Marines by attending drill while under the influence of illegal and controlled substances. These acts, coupled with the disregard to formal counseling, warranted separation from the Naval Service in order to maintain safety and good order and discipline within the unit. 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. 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. An upgrade or change would be inappropriate. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, and medical record entries, and discharge process, the NDRB found 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 Rev iews 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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