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USMC | DRB | 2012_Marine | MD1200399
Original file (MD1200399.rtf) Auto-classification: Denied
ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20111209
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)       20071121 - 20071202     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20071203     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20100427      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 25 D a y ( s )
Education Level:        AFQT: 59
MOS: 0341
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle , ( w /1 bronze service star ) , , , , MM

Periods of CONF :

NJP :

- 20080702 :       Article (Failure to obey a lawful order not to consume alcohol under the age of 21)
         Awarded: Suspended:

- 20081125 :      Article (Failure to obey a lawful order by wrongfully consuming enough alcohol to have a . 111 BAC)
         Article 108 (Willfully damage window by hitting the window)
         Awarded : Susp ended:

- 20091103 :       Article ( Wrongful use, possession, etc., of a controlled substance; specifically, wrongful use of cocaine - 227 ng/ml per N aval D rug L ab urinalysis testing results message dated 20091007 )
          Awarded: Suspended:

- 20100301 :       Article ( Absence without leave; specifically, unauthorized absence from appointed place of duty - p latoon formation)
          Awarded: , FOP Suspended:

- 20 100402 :       Article ( Absence without leave; specifically, unauthorized absence from appointed place of duty on 20200308 - Separations and Transitional Assistance Program )
         Article 92 (Fail ure to obey lawful order or regulation; violation of restriction order by consuming alcohol while on Company restriction)
          Awarded: Suspended:

SCM:     SPCM:    CC:


Retention Warning Counseling : 3

- 20081125 :       For violation of Articles 108 and 92, resulting in a Company level NJP.

- 20100301 :       For recent NJP for violation of Article 86, by failing to show for 0430 formation.

- 20100317 :       For recent NJP for violation of Article 86 and 92 by failing to show at your place of duty and for consum ing alcohol while on restriction.

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 order to facilitate reenlistment in the A rmed F orces.
Decisional issues : The Applicant contends that his misconduct of record was the result of symptoms of Post- Traumatic Stress Disorder (PTSD) , which was undiagnosed at the time .
Decision

 Date: 20 1 2 0308            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 statement indicated a concern that he was suffering from symptoms related to 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 achie ve 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) and adjudicated serious traffic law offenses . The Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs - in writing - on 20 November 2007 as a condition of his enlistment wa i ver process. The Applicant enlisted on an Infantry Option Guarantee c ontract and received training as a Mortarman. The Applicant’s military service record documents that he is a combat veteran, having served honorably during a combat deployments in the al-Anbar Province of Iraq ( March - September 2008) in support of Operation IRAQI FREEDOM. The military service record does not document th e award ing of a Combat Action R ibbon or any individual awards for meritorious or valorous service while in combat.
The Applicant’s official record of service includes three paragraph 6105 retention-counseling warnings and five nonjudicial punishment s for violation s of the Uniform Code of Military Justice (UCMJ) , specifically : Article 86 ( U nauthorized absence due to failure to be at appointed place of duty); Article 92 (Failure to obey lawful orders or regulations , 3 specifications ); Article 108 (Loss, damage, destruction of government property); and Article 112(a) ( W rongful use, possession, etc of a controlled substance - c ocaine ) . 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 Marine Corps Separation and Retirement Manual (MARCORSEPMAN) for Misconduct (Drug Abuse) and 6210.3, Misconduct (Pattern of Misconduct). When notified of the administrative separation process using the administrative board procedure, the Applicant elected his right to consult with a qualified legal counsel . In accordance with a signed pre-trial agreement, the Applicant waived his right to a hearing before an administrative discharge board to present his case for retention in return for the charges being withdrawn from punitive trial by special court - martial. The Applicant also elected to waive his right to submit written matters to the Separation Authority for 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 concurred . O n 2 7 April 2010, the Applicant was discharged .

Non decisional issue - The Applicant requests a change in his characterization of service in order to facilitate reenlistment in the A rmed S ervices. T he NDRB has no authority to upgrade a discharge for the sole purpose of facilitating reenlistment 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. Although the NDRB is not authorized to change a reentry code , the Applicant may petition the Board for Correction of Naval Records using DD Form 149 regarding a change to reenlistment codes. When requesting a change, the Applicant should provide as much documentation as possible to support the request for change. The address is: Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490. Further information is also available online at http://www.donhq.navy.mil/bcnr/bcnr.htm .

Decisional issues ( ) . The Applicant contends that his misconduct of record was the result of symptoms of PTSD, which were undiagnosed at the time, but warrant consideration as extenuating and mitigating factors to his discharge and the characterization of service he received.

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 Testing on 09 Oct 2009 - cocaine, 227 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 knowingly 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 the administrative discharge board findings 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) and paragraph 6210.3 (Pattern of Misconduct)) ; accordingly, he directed the Applicant be discharged. He further 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 ’s actions were proper. Accordingly, relief based on propriety is not warranted.

Equity Issue 1 - Despite a service member’s prior record of service, certain serious offenses 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 agreed to not pursue punitive discharge , instead cho o s ing to accept the more lenient, non-punitive , administrative discharge process following the n onjudicial punishment for illegal drug use. Based on the seriousness of th is offense and the established pattern of misconduct that preceded it (NJPs dated Sept 08, Nov 08) , the chain of command recommended separation with an Under Other Than Honorable Conditions characterization of service at discharge.

T he Applicant contends his misconduct was the result of undiagnosed symptoms of PTSD a nd warrants consideration as extenuating and mitigating factors to his discharge action and the characterization of service he received. 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 in- service medical record and found no record of any in-service medical diagnosis of PTSD . Further, t he medical record did not contain any post- service VA evaluations and the Applicant did not provide any post-service medical diagnosis by competent mental health authority to support a diagnosis of PTSD as contended . The Applicant’s medical record does indicate that a screening for PTSD was conducted and that the Applicant was determined at that time to not present any signs or symptoms of PTSD or Traumatic Brain Injury and the record did not indicate any recommendation for referral to a mental health treatment provider for an evaluation. The Separation Authority (Commanding General, 2nd Marine Division) reviewed this documentation and specifically considered it in his decision to discharge the Applicant . After a careful review of the Applicant’s combat deployment history and in-service medical records, coupled with his personal statement to the NDRB, the NDRB determined the Applicant’s contention of post-deployment stress and mental health problems were not mitigating or contributory factors to his misconduct . T he record of service clearly reflected willful misconduct , beginning before his combat service and continuing after his service, and demonstrat ed t hat he was 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 his acceptable conduct while deployed in a combat zone; for this service, he received the Iraqi Campaign 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 acts of misconduct and illegal drug

use - that constitute d 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.

T he 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 (i.e., a Bad Conduct Discharge or better) . 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 s for more information: http://www.ptsd.va.gov/public/pages/help-for-veterans-with-ptsd.asp and http://www.va.gov/healthbenefits/vhbh/ .

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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