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USMC | DRB | 2012_Marine | MD1200469

Original file (MD1200469.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20111229

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:         US AF (DEP)        20050128 - 20050203 (Disqualified - Positive Drug Test at MEPS)
         USMCR (DEP)       2005042 7 - 20050605     Active:

Period of Service Under Review:
Date of Current Enlistment: 20050606     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070907      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 02 D a y ( s )
Education Level:        AFQT: 46
MOS: 3531
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

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

Periods of UA / CONF :

NJP:

- 20061108 :      Article (Failure to obey order or regulation, 3 specifications)
         Specification 1: Failed to sign out of respectful barracks liberty log book.
         Specification 2: Consuming alcohol under the legal drinking age.
         Specification 3: Remaining off base after 2400 with a red liberty card.
         Article 95 (Resisting, breach of arrest, and escape 0400, 20061104)
         Article 117 (Provoking speeches or gestures toward Military Police)
         Awarded : Susp ended:

- 20070601 :       Article (Wrongful use possession, etc., of controlled substances - wrongful use of MDMA )
         Awarded: Suspended: 30 days

SCM:     SPCM:    CC:

In service wavier : For your fraudulent enlistment; specifically, your failure to report you r illegal drug involvement (marijuana use as identified by naval drug lab urinalysis testing aboard the Marine Corps Recruit Depot , PISC ), you fraudulently enlisted in the Marine Corps by fail ing to disclose recent pre-service drug use , not covered by your waive r at initial enlistment . A Commanding General level waiver for your retention has been approved by the Commanding General, MCRD, PISC.

Retention Warning Counseling : 2

- 20061108:      For your battalion NJP on 20061108 for violations of the UCMJ, specifically, violation of Articles 92 x 3 failure to obey order or regulation, violation of A rticle 95, resist of arrest and escape and violation of Article 117, pr ovoking speeches and gestures.

- 20070601 :       For violation of A rticle 112 a of the UCMJ, specifically, on or about 20070221, aboard Camp Foster you tested positive for MDMA 382 ng/ml on a routine Command Urinalysis [correction to record which documents DMETH use ( 606 ng/ml) in error - actual results from naval drug lab were positive test for MDMA] .

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 ”
         “ MISCONDUCT ”

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 .

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

1.       The Applicant seeks disability benefits from the Department of Veterans Affairs and employment opportunities.
2.       The Applicant contends his misconduct was an isolated incident i n what was an otherwise outstanding military career.
3.       The Applicant contends that his misconduct was the result of stress from depression and anxiety related to his combat service .

Decision

Date: 20 1 2 0510         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 . Th e Applicant’s statement indicated a concern that he has been suffering with depression and anger issues since his service in Iraq; the NDRB considered the Applicant’s statement to infer that he may be suffering with un diagnosed Post - Traumatic Stress Disorder (PTSD) issues . The Applicant’s military service record documents that he is a combat veteran, having served honorably during a combat deployment in the al-Anbar Province of Iraq ( Feb 200 6 - Sept 200 6 ) in support of Operation IRAQI FREEDOM. The military service record further documents that he was awarded the Iraqi Campaign Medal for his service. A s such, in accordance with U.S. Code, Title 10, Section 1553 (d) (1), the board included a member who is a physician, clinical psychologist, or psychiatrist. Additionally, in accordance with section 1553 (d) (2), the service secretary expedited a final decision and accorded the case sufficient priority to achieve an expedited resolution.

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge, if such change is warranted. In reviewing discharges, the NDRB presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The 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 two decisional issues 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 18 with a waiver to enlistment and induction standards for pre-service illegal drug usage (marijuana) and a waiver for a preceding discharge from the U.S. Air Force’s delayed entry program due to a positive urinalysis for marijuana at the Military Entrance Processing Station. The Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs - in writing - on 27 April 2005 as a condition of his enlistment wa i ver process. The Applicant enlisted on a n Open Contract a nd received training as a Basic Motor Transportation Operator .
While at Marine Corps recruit training, the Applicant was processed for discharge due to fraudulent ly enlist ing in the service as a result of his positive urinalysis test result, which documented the Applicant’s use of marijuana while in the delayed entry program just prior to shipping to recruit training. He was counseled officially on this misconduct and his fraudulent enlistment, but was retained by the Commanding General with approval of a w aiver to the fraudulent entry.

The Applicant’s official record of service document s two paragraph 6105 retention-counseling warnings during his service . Additionally, the record of service documents tw o nonjudicial punishments for violations of the Uniform Code of Military Justice (UCMJ) : A rticle 92 (Failure to obey order or regulations - 3 specifications) , Article 95 (Resisting, breach of arrest, and escape) , Article 117 (Provoking speech and gestures - 2 specifications) , and Article 112(a) ( W rongful use, possession, etc of a controlled substance ( MDMA/Ecstasy ) - one specification of wrongful use). Based on the Article 112(a) violation, by acknowledged service policy, processing for administrative separation was mandatory. 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 M arine Corps Separation and Retirement Manual (M ARCORSEPMAN ) . 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, to present his case for retention to an administrative hearing board , or to provide written matters to the Separation Authority for his 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 evidence of record and concurred; on 07 September 200 7 , the Applicant was discharged from the service for Misconduct (Drug Abuse) and received a corresponding ly appropriate re-entry code of RE-4B (not recommended for reenlistment, in - service drug abuse).

Issue 1: (Nondecisional Issue) The Applicant seeks disability benefits from the Department of Veterans Affairs and employment opportunities. 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 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. As such, this issue does not serve to provide a foundation upon wh ich the NDRB can grant relief.

Issue 2: (Decisional I ssue) ( ) . The Applicant contends his misconduct was an isolated incident in what was an otherwise outstanding military career. The Applicant was determined to have violated Article 112(a) at NJP . The basis for establishing that the Applicant had committed the offense was a Naval Drug Lab Testing result from a command urinalysis test . The Applicant’s urine sample tested positive for the illegal use of a controlled substance, MDMA ( 3 82 ng/ml ) . By service policy, confirmed illegal drug use mandated processing for administrative separation. 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 did not opt to pursue a punitive discharge, but instead chose the more lenient, non-punitive administrative discharge process following a nonjudicial punishment for illegal drug use. Based on the seriousness of the offense and the violation of the acknowledged service policy, the chain of command recommended separation with an Under Other Than Honorable Conditions characterization of service at discharge. 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.

Issue 3: (Decisional Issue) (Equity) RELIEF NOT WARRANTED . The Applicant contends that his misconduct of record was the result of stress from depression and anxiety related to his combat service . 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 the Applicant ’s in- service and post-service medical record s , which were reviewed for any indications of mental health claims or treatment and any diagnosis of PTSD. The NDRB found no in-service me ntal health related issues or any diagnosis of PTSD . Additionally, the Department of Veterans Affairs records included no post - service medical or mental health treatment evaluations since discharge. Moreover, t he Applicant did not produce any post-service diagnosis by any competent mental health authority to support his contention s . After a careful review of the Applicant’s combat deployment history and in-service me dical records, coupled with the multiple positive urinalys e s for illegal drug use while in the d elayed e ntry p rogram and upon initial entry onto active duty, 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 service record clearly reflected willful and persistent misconduct and demonstrated that he was unfit for further service. 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.

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 Rev iews and Post-Service Conduct .

ADDENDUM: Information for the Applicant

Complaint Procedures : If you believe the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC 20301-4000. You should read Enclosure (5) of the Instruction before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Instruction 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil . ”

Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s date of discharge. The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge. Representation at a personal appearance hearing is recommended but not required. There are veterans organizations such as the American Legion and the Disable d American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 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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