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USMC | DRB | 2012_Marine | MD1200204
Original file (MD1200204.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)       20031114 - 20040801     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20040802     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20060831      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 00 D a y ( s )
Education Level:        AFQT: 42
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

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

Periods of U nauthorized A bsence / C onfinement : NFIR

NJP:
- 20060602 :       Article (Failure to obey a lawful order)
         Article ( Wrongful use, possession, etc of a controlled substance; wrongful use of marijuana as confirmed by Naval Drug Lab u rinalysis testing - 28 ng/ml )
         Awarded: Suspended:

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 .

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


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 access to Department of Veterans Affairs (VA) educational benefits. The Applicant contends that Cannabis should be a legal medical treatment, as many states have already voted, and that he should not have been penalized, as his use was for medicinal purposes to treat his P ost-Traumatic Stress Disorder (P TSD ) symptoms.

Decisional issues : The Applicant contends that his misconduct of record was the result of self-medicating to deal with stress a nd anxiety related to PTSD . The Applicant contends that his discharge was a violation of his C onstitutional rights (freedom of religious expression - drug usage ) .

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 directly related to 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 Applicant’s service record documents a deployment as an Infantryman in the Al-Anbar Province of Iraq, conducting combat operations in Ar-Ramadi in support of Operation IRAQI FREEDOM (O I F).

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. 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 stan dards of equity and propriety. The Applicant’s enlistment record reflects entry into military service at age 18 with a waiver to enlistment and induction standards for a pre-service illegal drug usage (marijuana) and pre-service adjudicated criminal offense (possession of a controlled substance ( marijuana ) and possession of drug paraphernalia. The Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs - in writing - on 12 November 200 3 as a condition of his enlistment wa i ver process. The Applicant enlisted on an Infantry Option Guarantee contract for 4 years of active duty military service and received training as a Rifleman.

The Applicant’s record of service documents one nonjudicial punishment proceeding for violation of Article 92 (Failure to obey lawful orders or regulations) and Article 112(a) ( W rongful use, possession, etc of a controlled substance - marijuana ). Based on the Article 112(a) violation, by service policy, processing for administrative separation was mandatory. The Applicant was notified of the proposed recommendation for separation pursuant to paragraphs 6210.5 of the M arine Corps Separation and Retirement Manual (M ARCORSEPMAN ) for Misconduct (Drug Abuse). When notified of the administrative separation process using the board notification procedure, the Applicant elected to waive his right to consult with a qualified legal counsel a n d waived his right to request a hearing before an administrative discharge board to present his case for retention or characterization of service. However, the Applicant did elect his right to submit written matters for the Separation Authorit y’s 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 the Applicant’s written matters and concurred with the discharge action as proposed ; on 17 August 2006 , the Applicant was approved for discharg e with a n assigned re-entry code of RE-4B (not recommended for reenlist ment, in - service drug abuse).

(Non decisional issue) The Applicant seeks an upgrade in the characterization of his service at discharge in order to facilitate access to VA educational benefits. Additionally, the Applicant contends that Cannabis should be a legal medical treatment, as many states have already voted, and that he should not have been penalized, as his use was for medicinal purposes to treat his stated PTSD symptoms. 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 facilitating reenlistment opportunities or for 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.

Likewise, legalization of Cannabis for medicinal purposes and within the Department of Defense are issue s for the Congress of the United States and the Attorney General of the United States in accordance with U.S. Code, Title 21, Section 801 ( Congressional Findings and Declarations: Controlled Substances ) and section 844 (penalties). In accordance with these laws and the other applicable subsections of Title 21 and Title 10, U.S. Code , the Department of Defense mandates drug testing in accordance with Department of Defense Directive 1010.1, ( DODD 1010.1 - Military Personnel Drug Abuse Testing Program ), dated December 9, 1994 (as amended in 1999) . As such, th ese issue s do not serve to provide a foundation upon which the NDRB can grant relief.

 (Decisional issues) ( ) . The Applicant contends that his misconduct of record was the result of self-medicating to deal with stress and anxiety related to PTSD. Additionally, the Applicant contends that his discharge was a violation of his C onstitutional rights (freedom of religious expression - religious drug usage ).

Propriety - The Applicant was found guilty of violating Article 112(a) ( W rongful use, possession, etc of a controlled substance) at nonjudicial punishment. The basis for establishing that the Applicant had committed the offense was Naval Drug Lab t esting dated 19 May 2006 in which the Applicant’ urine sample tested positive for metabolites of marijuana usage - 28 ng/ml by volume . 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 knowingly waiving his right to present his case for retention to an administrative board of members. The Separation Authority reviewed the evidence of record , the Applicant’s 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. The NDRB determined that the evidence of record did establish the basis for discharge and that the Separation Authority actions were proper. A ccordingly, relief based on propriety is not warranted.

Equity Issue 1 - The Applicant contends that his misconduct of record was the result of self-medicating to deal with stress and anxiety related to PTSD. The government enjoys a presumption of regularity in the conduct of its affairs; t he Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. The NDRB requested , but did not receive , the Applicant ’ s in-service medical record and any treatment records ( post-service ) from the Department of Veterans Affairs. The Applicant provided no supporting documentation to validate any medical diagnosis by competent mental health authorit ies to support a diagnosis of PTSD as contended. The Applicant’s service record documents a combat deployment to Iraq from 06 Sept 2005 to 01 April 2006. He failed a command urinalysis following his return from the 30 - day post - deployment leave period in May 2006. The service record further documents that this was not the Applicant’s first in-service use of marijuana; the Applicant had admitted this fact to his chain of command. After a careful review of the Applicant’s combat deployment , coupled with the statements of the chain of command regarding the Applicant’s multiple use s of illegal substances, and his personal statement to the NDRB , the NDRB determined the Applicant’s contention of post-deployment mental health problems were not mitigating or contributory factors to his misconduct. The record of service clearly reflected willful misconduct, beginning before his combat service and continuing after t his service, and demonstrated that he wa s unfit for further service. 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 service record clearly documents deploy ment in a combat zone; for this service, he received the Iraq Campaign Medal. However, the record of service does not document any personal awards during combat or peacetime that would constitute service that was so meritorious that it would reverse his illegal drug use - which constitute s a n act or omission that was a significant departure from the conduct expected of service members. Relief denied .

Equity Issue 2 - The Applicant contends that his discharge was a violation of his C onstitutional rights. The Applicant entered the Delayed Entry Program on 14 November 2003. As a function of his enlistment, he completed a standardized Record of Military Processing - Armed Forces of the United States (DD Form 1966-1). On this document, the Applicant indicated his religious faith as “Catholic.” There is no waiver or exemption in the military service for religious drug usage for the Catholic f aith or any other religion . As such, this issue is without merit. Relief denied.

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 w ere proper, w ere equitable, w ere warranted, and w ere and are 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), 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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