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USMC | DRB | 2012_Marine | MD1200486
Original file (MD1200486.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20120105
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to: Expiration of Active Service (EAS)

Summary of Service
Prior Service:
Inactive:         USMCR (DEP)       20041210 - 20050110     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20050111     Age at Enlistment:
Period of E nlistment : Years M onth
Date of Discharge: 20090130      H ighest Rank:
Length of Service : Y ea rs M on th 19 D a y
Education Level:        AFQT: 61
MOS: 1371
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (2) ( 2 ) ( 2 )

Periods of UA :

NJP:

- 20051028 :      Article (Failure to obey order or regulation by consuming alcoholic beverages under the age of 21)
         Awarded: Suspended:

SCM:

- 20081016 :      Article (Wrongful use, possession, etc. of controlled substances, to wit: cocaine 5 , 641 ng/ml )
         Sentence: (20081020-20081108, 20 days)

- 20081218 :      Article (Wrongful use, possession, etc. of controlled substances, to wit: marijuana)
         Sentence: (20081219-20081230, 12 days)

SPCM:            CC:

Retention Warning Counseling :

- 20051028 :       For your alcohol - related incident, specifically, violation of Article 92 for consuming alcoholic beverages while underage along with your immaturity and lack of judgment.

Administrative Corrections to the Applicant’s DD 214

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

          “ ”

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

 1.       The Applicant contends his discharge was inequitable and improper because his misconduct is mitigated by the P ost- T raumatic S tress D isorder (PTSD) he developed during two tours in Iraq.
2.       The Applicant contends his in-service conduct warrants an Honorable or a General (Under Honorable C ondition s ) .
3.       The Applicant contends the NDRB’s precedent in upgrades justifies his request for an upgrade.
4.       The Applicant believes the Marine Corps improperly considered his urinalysis results when characterizing his discharge.

Decision

Date : 20 1 2 0913            Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall .
Discussion
As a result of the Applicant’s claim of PTSD, in accordance with U.S. Code, Title 10, 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 reviewed the Applicant’s personal statement; the Applicant stated that he was diagnosed with PTSD related to his combat service in Iraq. The Applicant’s service record documents completion of deployment s to Fallujah, Iraq from 5 October 2006 to 21 April 2007 and Al Ramadi, Iraq, from 30 October 2007 to 26 May 2008 , conducting combat service support operations in support of Operation IRAQI FREEDOM. The military service record further documents that he was awarded the Iraqi Campaign Medal with one campaign star and the Combat Action Ribbon. A careful review of the Applicant’s service and medical records indicates the Applicant was exposed to an improvised explosive device (IED) blast during his first Iraqi deployment on 28 Mar 2007 . Based on his first deployment post-deployment health assessment screening dated 30 April 2007 , it was determined that the Applicant needed mental health treatment. The NDRB did not find any evidence in the records that the Applicant received mental health treatment . However, on his pre-deployment health assessment screening dated 27 A ugust 2007, completed for his second deployment, the Applicant indicated he had sought counseling or care for mental health in the past year. On his Report of Medical History completed on 25 November 2008, as part of his separation physical, the Applicant noted that he had received counseling for depression after his first deployment and was prescribed medication for major depression , including Prozac from 16 June - 8 August 2008. The medical officer reviewing the Applicant’s separation physical noted that the Applicant had a history of major depression and anxiety, along with recreational drug use, and the Applicant should continue mental health treatment with the U.S. Department of Veterans Affairs (VA) .

The Applicant p rovide d a post-service civilian physician’s statement showing he was prescribed medical marijuana for a diagnosed serious medical condition (condition was not stated) .

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. The Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent sta ndards of equity and propriety. The Applicant’s record of service included 6105 counseling warning, for o f the Uniform Code of Military Justice (UCMJ): Article ( Failure to obey order or regulation by consuming alcoholic beverages while under the age of 21 ) , and for of the UCMJ: Article ( Wrongful use, possession, etc. of controlled substances, 2 specification s : Specification 1 : to wit he used cocaine 5 , 641 ng/ml and Specification 2: to wit he used marijuana ). The Applicant a pre-service drug waiver for using marijuana prior to entering the Marine Corps, acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 30 November 2004 . Based on the Article 112a violation , processing for administ rative separation is mandatory. When notified of a dministrative separation processing using the procedure, the Applicant rights to consult with a qualified coun sel and submit a written statement , but waived his right to request an administrative board .


: (Decisional) ( ) . The Applicant contends his discharge was inequitable and improper because his misconduct is mitigated by the PTSD he developed during two tours in Iraq. 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. T he NDRB did not find any reference to a medical diagnosis of PTSD in the Applicant’s service record to support his claim, and the Applicant did not provide any documentary evidence of a medical diagnosis by competent medical authorities to support his claim . However, t here are indications in the record that the Applicant had a history of major depression and anxiety disorder . Additionally, in his endorsement for separation of the Applicant from the Marine Corps, the Commanding General stated that in making a separation and characterization determination , he considered the Applicant’s PTSD diagnosis. Also, it is apparent from the Applicant’s Report of Medical History completed for separation that he was receiving treatment for a mental health condition , alleviating the need for self-medication . While he may feel PTSD was the underlying cause of his misconduct, t he NDRB determined that his PTSD did not mitigate his repeated use of illegal drugs and further determined that his discharge was both proper and equitable . Relief denied.

: (Decisional) ( ) . The Applicant contends his in-service conduct warrants an Honorable or, at a minimum, a General (Under Honorable Conditions). The Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation. Characterization of service at discharge is the recognition of a Marine’s performance and conduct during a period of enlistment and is not necessarily dependent upon the narrative reason for separation. When the quality of a member’s service has met the standards of accepted 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. 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 NDRB determined the Applicant’s conduct, which forms the primary basis for determining the character of service, reflected acts (i.e., repeated use of illegal drugs) that were a significant departure from the conduct expected of a service member and the awarded characterization, as issued, was appropriate and was equitable. Accordingly, relief denied.
: (Decisional) ( ) . The Applicant contends the NDRB’s precedent in upgrades justifies his request for an upgrade. 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 standards of discipline of the Naval Service. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Marine Corps . A preponderance of the evidence reviewed supports the conclusion that the Applicant committed multiple serious offense s , that PTSD did not mitigate his misconduct, that separation from the Naval Service was appropriate, and that a n Under Other Than Honorable Conditions discharge was warranted. Relief denied.

4 : (Decisional) ( ) . The Applicant believes the Marine Corps improperly considered his urinalysis results when characterizing his discharge. The Applicant contended his urinalysis samples were taken for fitness - for - duty test s, and therefore cannot be used as a basis for characterization of service , pursuant to M arine Corps Separation and Retirement Manual, Ch.1, Para. 1004.4(e)(1). The NDRB rejects the Applicant’s contention . On 8 August 2008, the Applicant tested positive for cocaine at a battalion urinalysis. On 14 October 2008, the Applicant tested positive for marijuana at a battalion urinalysis. Neither urinalysis was a fitness - for - duty urinalysis. The NDRB discerned no impropriety in the urinalysis and no impropriety or inequity in the separation proceedings . Relief denied.

The 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. 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 review of service and determination of benefits from the VA. Alternately, he may call 1-877-222-8387 or visit the following website for more information: http://www4.va.gov/healtheligibility/Library/pubs/CombatVet/CombatVet.pdf .




Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries and discharge process, the Board found 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 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

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