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USMC | DRB | 2012_Marine | MD1200202
Original file (MD1200202.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20111103
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)       20030417 - 20031109     Active:            20031110 - 20070815 HON

Period of Service Under Review:
Date of Current Enlistment: 20070816     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20091027      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 12 D a y ( s )
Education Level:        AFQT: 76
MOS: 0341
Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle , Pistol , , , (WITH 1 CAMPAIGN STAR), , , (2) , , , , MUC, LoA

Periods of UA / CONF :

NJP:              SPCM:             CC:               Retention Warning Counseling :

SCM:
- 20090612 :       Art icle ( Wrongful use, possession, etc., of a controlled substance , 1 specification of wrongful use of a controlled substance - C ocaine , 1909 ng/ml per Naval Drug Lab urinalysis test confirmation )
         Sentence :

Administrative Corrections to the Applicant’s DD 214

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

          “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 031110 UNTIL 070815 ”

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 :        

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

Applicant’s Issues

 Decisional I ssues : (1) The Applicant seeks a change in the characterization of his service at discharge to Honorable, contending that the Applicant’s previous honorable enlistment, his meritorious service in combat, and the awarding of the C ombat A ction R ibbon and G ood C onduct M edal warrant consideration. (2) The Applicant further contend s that his misconduct of record was the result of stress from depression and anxiety related to undiagnosed Post - Traumatic Stress Disorder (PTSD) , coupled with the death of his brother (USMC service member in Iraq) , which warrants consideration as an extenuating and mitigating factor to his discharge and the characterization of service he received.

Decision

 Date: 20 1 2 0322           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 a chieve 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. T he 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 e quity and propriety.

The Applicant entered military service at age 18 on a four - year enlistment with a guaranteed contract of Infantry Option. The Applicant’s enlistment record reflects entry into military service with a waiver to enlistment and induction standards for pre-service illegal drug usage (marijuana). The Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs - in writing - on 16 April 2003 as a condition of his enlistment waiver process . The Applicant completed his first enlistment honorably and was immediately reenlisted for a second four-year service obligation. The Applicant completed two deployments as an Infantryman in the Al-Anbar Province of Iraq while conducting combat operations in support of Operation IRAQI FREEDOM (OIF). The military service record further documents that he received the Combat Action Ribbon for his personal actions while engaged in direct combat operations against enemy forces.

The Applicant’s record of service documents no paragraph 6105 retention-counseling warnings. However, it does document a S ummary C ourt -M artial for violation of the Uniform Code of Military Justice (UCMJ) , specifically, Article 112(a) (Wrongful use, possession, etc of a controlled substance - wrongful use of cocaine, 1909 ng/ml as verified by Naval Drug Lab urinalysis testing ). Based on the violation of Article 112(a), processing for administrative separation, by service policy, was mandatory. The charge was initially preferred for trial by punitive Special Court - Martial , however, the Applicant entered into a Pre-Trial Agreement (PTA) in which he agreed to plead guilty to the charge, as specified, and agreed to waive his right to an administrative hearing board. In return, the C ommand agreed to withdraw the charge from trial by S pecial C ourt -M artial and adjudicate it at the lesser administrative S ummary C ourt -M artial. In accordance with the PTA, the Applicant pled guilty and was found guilty of violating Article 112(a) of the UCMJ at trial by S ummary C ourt -M artial. The Applicant was notified - in writing - of the Command’s intent to process the Applicant for administrative separation for Misconduct (Drug Abuse) in accordance with paragraph 6210.5 of the Marine Corps Separation and Retirement Manual ( MARCORSEPMAN ) . When notified of administrative separation processing using the notification procedure, the Applicant waived right to consult with a qualified legal defense counsel and indicated his intent to provide a written statement for consideration by the Separation Authority - but did not submit. Furthermore, the Applicant expressly waived his right to request an administrative hearing board be held in order to present his case for retention or characterization. The Applicant was advised that the least favorable characterization of his service at discharge was U nder O ther T han H onorable C onditions and that characterization was what the Command was recommending he be awarded. As a function of the separation process, the Applicant was evaluated and screened by a Medical Officer for signs of PTSD and Traumatic Brain Injury . He was found to exhibit signs and symptoms of PTSD and was advised that referral to a mental health care provider for further evaluation was indicated. After review by the Staff Judge Advocate, the Separation Authority determined that the evidence of record was sufficient in law and fact to support the proposed discharge action. He reviewed the chain of command’s recommendations regarding characteriza tion of service . On 24 August 2009, the Separation Authority directed the Applicant be discharged with an Under Other Than Honorable Conditions characterization of service for Misconduct (Drug Abuse) pursuant to paragraph 6210.5 of the MARCORSEPMAN.

(Decisional issues) ( ) . (1) The Applicant seeks a change in the characterization of his service at discharge to Honorable, contending that the Applicant’s previous honorable enlistment, his meritorious service in combat, and the awarding of the combat action ribbon and good conduct medal warrant consideration. (2) The Applicant further contend that his misconduct of record was the result of stress from depression and anxiety related to undiagnosed PTSD , coupled with the death of his brother (USMC service member in Iraq) .

Propriety - The Applicant was found guilty of violating Article 112(a) (Wrongful use, possession, etc of a controlled substance) at S ummary C ourt -M artial. The basis for establishing that the Applicant had committed the offense was Naval Drug Lab u rinalysis testing, which confirmed the presence of cocaine in the Applicant’s body. During the Summary Court - Martial proceedings, the Applicant admitted to his illegal use. 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 counsel and presenting his case for retention to an administrative board of members. The Separation Authority reviewed the evidence of record and determined that it satisfied the requirements as outlined in the applicable regulation; accordingly, he directed the Applicant be discharged. The NDRB determined that the evidence of record did establish and meet the required elements of the specified basis for discharge (Misconduct - Drug Abuse) and that the Separation Authority actions were proper. Accordingly, relief based on matters of propriety is not warranted.

 Equity Issue 1 - The Applicant seeks a change in the characterization of his service at discharge to Honorable, contending that his previous honorable enlistment, his meritorious service in combat, and the awarding of the Good Conduct Medal and Combat Action Ribbon warrant consideration. The Applicant completed his first enlistment period with an Honorable characterization of his service; for that period of time he received an honorable discharge; however, each period of enlistment is an independent obligation and characterization of service is determined for each obligated period of service, independently. 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 for up to 5 years, 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, instead choosing the more lenient, non - punitive administrative discharge process following an administrative S ummary C ourt -M artial. Based on the seriousness of the offense, coupled with the nature of misconduct by a noncommissioned officer, the chain of command recommended separation with an Under Other Than Honorable Conditions characteri zation of service at discharge. Relief denied.

Equity Issue 2 - The Applicant contends that his misconduct of record was the result of stress from depression and anxiety related to undiagnosed PTSD, coupled with the death of his brother in combat (a fellow USMC service member) . 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 VA medical treatment records. Post military service, the Applicant was diagnosed by appropriately credentialed mental health care providers with PTSD, directly related to his combat service in Iraq; this condition was determined sever e enough to warrant a disability rating of up to 100 % at one point in his treatment . After an in - depth review of the Applicant’s service record and his in-service and post-service medical records, the NDRB determined that the contention of PTSD existing in-service, prior to the misconducts of record, was established. Given the Applicant’s combat deployment history, his in-service mental health issues, the diagnosed PTSD (sever e ), and the unique issues associated with this individual discharge action, the NDRB determined that the Applicant’s PTSD and associated symptoms were mitigating and contributory factors in his misconduct and that some f orm of relief was warranted. Relief denied.
When the quality of a member’s service has met the standards of acceptable 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. However, a n 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 numerous awards and accolades and warranted the awarding of an Honorable discharge at the completion of his first enlistment. However, the record of service does not document service so meritorious that it would completely overcome the Applicant’s disregard for good order and discipline and use of illegal drugs - which constituted acts or omissions that were a significant departure from the conduct expected of service members. 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, but significant negative aspect of the member’s conduct did still outweigh the overall positive aspect of his record. As such, given the facts and circumstances unique to this case, the NDRB determined that partial relief was warranted based on equitable grounds. The NDRB voted 5-0 to upgrade the characterization of service at discharge to General (Under Honorable Conditions), but, by a vote of 5-0 , that no change to the narrative reason for separation is warranted.
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 but 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.

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 .

C. U.S. Code, Title 10, Section 1553 (d)


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

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