Search Decisions

Decision Text

USMC | DRB | 2012_Marine | MD1200092
Original file (MD1200092.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20111012
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:  

Period of Service Under Review:
Date of Current Enlistment: 19990220     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 200505 18      H ighest Rank:
Length of Service:
         Inactive:        Y ea r ( s ) M on th ( s ) 06 D a y ( s )
         Active:  Y ea r ( s ) M on th ( s ) 13 D a y ( s )
 Education Level:        AFQT: 92
MOS: 3043
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle AFRM with “M ” CoA

Periods of UA / CONF :

NJP:
- 20040516 :      Article (Wrongful use, possession, etc. of a controlled substance , marijuana , 57 ng/ml )
         Awarded: (to E-2) Suspended: (suspend 6 months)

SCM:     SPCM:    CC:      Retention Warning Counseling :

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

 1.       Applicant contends command impropriety regarding alleged illegal personal conduct of fellow Marines during combat operations in Iraq.
2.       Applicant contends his misconduct was a result of sel f -medication in dealing with the effects of P ost-Traumatic Stress Disorder (P TSD ) from his combat service in Iraq.
3.       Applicant contends the misconduct for which he was separated was an isolated incident in otherwise honorable service.
4.       Applicant contends his post-service achievements warrant consideration for a discharge upgrade.

Decision

 Date: 20 1 2 0 6 25            Location: Washington D.C .         R epresentation :

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

 The Applicant contends the misconduct for which he was separated was a result of self-medication in dealing with the effects of PTSD from his combat service in Iraq. A review of the Applicant’s records reveals that he served in Iraq in support of Operation Iraqi Freedom from March - September 2003. 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 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. T he Board c omplete d a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service did reflect for o f the Uniform Code of Military Justice (UCMJ): Article ( Wrongful use, possession, etc of a controlled substance, marijuana, as evidenced by a positive urinalysis test conducted during a fitness for duty physical exam at Bethesda Na tional Naval Medical Center , MD ) . The Applicant did not have an enlistment waiver for illegal drug use prior to entering the Marine Corps ; however, he did acknowledge his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 22 January 1999 . Based on the Article 112a violation , processing for administ rative separation is mandatory per the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) . When notified of a dministrative separation processing using the procedure on 9 May 2004 , the Applicant rights to consult with a qualified coun sel and request an administrative separation board. He did submit a written statement acknowledging his guilt and the reasons why he chose to purposefully violate the Marine Corps’ zero tolerance policy against illegal drug use , knowing that it would result in his discharge from the Marine Corps . On 15 December 2004, the Applicant’s Battalion Commander endorsed his administrative separation package . On 4 May 2005, the Separation Authority, after considering the facts and circumstances surrounding the Applicant’s case, directed that he be separated from the Marine Corps with an Under Other Than Honorable Conditions discharge due to Misconduct (Drug Abuse). The Applicant was discharged as directed on 18 May 2005.
Issues 1 and 3 : (Decisional) ( ) . The Applicant contends command impropriety regarding alleged illegal personal conduct of fellow Marines during combat operations in Iraq. Additionally, he contends the misconduct for which he was separated was an isolated incident in otherwise honorable service. T he NDRB is not an investigative body, and allegations of command legal or administrative impropriety should be made to the Naval Inspector General ’ s Office. Allegations notwithstanding, the Board conducted a detailed review of the Applicant’s records to determine whether his discharge met the pertinent standards for propriety and equity. Despite a service member’s prior record of se rvice, certain serious offenses, even though isolate d, warrant separation from the N aval S er vice in order to maintain good order and discipline ; violation of Article 112a meets this standard . He was fully aware there is a zero - tolerance policy for drug abuse , and

he acknowledged the consequences. While he may feel his mistrust of command leadership over alleged law of war violations and legal/administrative impropriety were the underlying cause of his misconduct, the record clearly reflects his misconduct was willful and demonstrated he was unfit for further service. The evidence of record does not demonstrate the Applicant was not responsible for his conduct or he should not be held accountable for his actions. An Under Other Than Honorable Conditions discharge is warranted when a Marine commits or omits an act that constitutes a significant departure from the conduct expected from a Marine. The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of conduct expected of all Marines, regardless of his grade , length of service or combat experience, and f alls short of w hat is required for an upgrade in the characterization of service. Accordingly, the NDRB determined that the Applicant’s issue did not provide a basis for which relief could be granted. Relief denied.

: (Decisional) ( ) . The Applicant contends the misconduct for which he was separated was a result of self-medication in dealing with the effects of PTSD from his combat service in Iraq. While he may believe PTSD was the underlying cause of his misconduct, the record clearly reflects his misconduct was willful and demonstrated he was unfit for further service. During the Applicant’s fitness for duty and psychiatric follow-up examinations in April 2004, he stated that he had been experiencing problems with anxiety and depression since age 11 , which he failed to divulge while being processed for Marine Corps enlistment in 1999 . He further stated that during 2002 he sought help from his family practitioner and received prescriptions for Xanax and Trazadone , medications that he continued to use throughout his deployment to Iraq (not divulged to his command n or documented with in his service/medical records). At the time of his administrative separation processing, the Applicant submitted a written statement to his chain of command admitting that he purposefully violated the USMC drug policy in order to be separated from the Marine Corps due to allegations of individual Marine misconduct and command impropriety regarding the alleged misconduct during combat operations in Iraq. However, in his letter to the NDRB, he states that his drug use was due to self-medication in dealing with the effects of PTSD. After detailed analysis and careful consideration of all the available evidence, the NDRB determined the Applicant’s issue to be without merit and did not provide a basis for which relief could be granted. Relief denied.

Issue 4 : (Decisional) ( ) . The Applicant contends his post-service achievements warrant consideration for a discharge upgrade. The NDRB considers post-service conduct in order to determine if the misconduct committed during active duty was indicative of the Applicant ’ s character or an aberration. However, there is no law or regulation that provides 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 have existed during the period of enlistment in question. The Applicant provided a personal statement, C ongressional correspondence, transcripts, criminal background check, and character reference letters as evidence of post-service accomplishments. Although his efforts to improve his life are noteworthy, c ompletion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis. After careful consideration of all the available evidence and the facts and circumstances unique to the Applicant’s case, the NDRB determined that this issue did not provide a basis for which relief could be granted. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service and record entries , documentary evidence submitted by the Applicant, and the administrative separation process, the Board found Therefore, the awarded characterization of service shall UNDER OTHER THAN HONORABLE CONDITIONS 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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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 | 2015_Marine | MD1501130

    Original file (MD1501130.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. Although the Applicant may feel he was going to be allowed to complete his enlistment in spite of his drug abuse, there is nothing in the record that shows his command had any other intentions than his mandatory processing for administrative separation. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance...

  • USMC | DRB | 2010_Marine | MD1000549

    Original file (MD1000549.rtf) Auto-classification: Denied

    The NDRB thoroughly examined the Applicant’s record of service and found no documented evidence of misconduct, counseling warnings, or medical evaluations that would support his claim that he suffered from the effects of PTSD after his return from Iraq. Though no significant medical or mental health issues were evident at the time of his separation, and even if combat or other service-related medical issues did exist, DoD disability regulations do not preclude a disciplinary separation,...

  • USMC | DRB | 2015_Marine | MD1500120

    Original file (MD1500120.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. ” 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. There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans benefits and this issue does not serve to...

  • USMC | DRB | 2013_Marine | MD1301636

    Original file (MD1301636.pdf) Auto-classification: Denied

    MD13-01636 DEPARTMENT OF THE NAVY NAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT APPLICANT'S ISSUES The Applicant secks an upgrade to qualify for veterans benefits.. Upon retum from Iraq, however, further misconduct led the command to impose ae Z OT ~ Docket No. The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge.

  • USMC | DRB | 2013_Marine | MD1301747

    Original file (MD1301747.rtf) Auto-classification: Denied

    of controlled substances; also advised of being processed for administrative separation) 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...

  • USMC | DRB | 2015_Marine | MD1500597

    Original file (MD1500597.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. The Applicant stated that he experienced PTSD symptoms related to his combat service in Iraq. ” 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.

  • USMC | DRB | 2010_Marine | MD1000070

    Original file (MD1000070.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues The Applicant seeks appropriate relief by a change to his characterization of service to Honorable and a narrative reason for separation change to “Defective Enlistment” or ‘Fraudulent Entry into Military Service. Therefore, under equity, the Applicant should have been separated for erroneous enlistment or fraudulent enlistment and that his service was honorable; as such, the...

  • USMC | DRB | 2012_Marine | MD1200486

    Original file (MD1200486.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: Pertinent Regulation/Law A. ” Additional Reviews : After...

  • USMC | DRB | 2012_Marine | MD1200204

    Original file (MD1200204.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to: Narrative Reason change to: Summary of ServicePrior Service: Inactive:USMCR (DEP)20031114 - 20040801Active: Period of Service Under Review: Date of Current Enlistment: 20040802Age at Enlistment: Period of Enlistment: Years MonthsDate of Discharge:20060831Highest Rank:Length of Service: Year(s)Month(s)00 Day(s)Education Level: AFQT:42MOS: 0311Proficiency/Conduct Marks (# of occasions):()/()Fitness Reports: Awards and Decorations (per DD...

  • USMC | DRB | 2011_Marine | MD1101362

    Original file (MD1101362.rtf) Auto-classification: Denied

    The Applicant was not convicted criminally; he was administratively punished under Naval Regulations and then administratively processed for separation based on the Commander’s determination that retention in the Naval Service was no longer warranted.An Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for Naval personnel, or is otherwise so meritorious that any other characterization...