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USMC | DRB | 2012_Marine | MD1200656
Original file (MD1200656.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20120131
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)       20070614 - 20070715     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20070716     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20110528      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 21 D a y ( s )
Education Level:        AFQT: 94
MOS: 1171
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle ACM LoA (2 ) NATO ( ISAF Afghanistan )

Periods of UA /CONF : Pre-Trial CONF 20100602 - 20100824 ( 84 days )

NJP:

- 20100123 :       Article (Disrespect toward s uperior c ommissioned o fficer , reveal personal information pertaining to two c ommissioned o fficers toward an audience of Marines of enlisted ranks , 20100120 )
         Article (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer)
         Article 92 (Failure to obey an order or regulation , BN Chaplain ) , 20100120
         Awarded: RESTR EPD Suspended:

SCM:

- 20100 827 :       Art icle (Wrongful use, possession, etc., of controlled substance, cocaine , o/o 20100522 )
         Sentence : RIR (to E-1) (20 days)
CA: The sentence adjudged is approved and order executed. The accused is credited with 30 days confinement credit ; the 20 days of restriction will be remitted (result of clemency request) .

SPCM:    CC:

Retention Warning Counseling :

- 20100123 :       For Company Level NJP for violation of Article 92, failure to obey an order or regulation.

- 20110126 :       For your assignment to the Marine Corps BCP (body composition program) .





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.       Applicant seeks a discharge upgrade to obtain veteran benefits.
2.       Applicant contends P ost-Traumatic Stress Disorder (P TSD ) resulting from traumatic events mitigates his misconduct.
3.       Applicant contends his participation in the N aval Criminal Investigative Service (N CIS ) w itness program warrants consideration for a discharge upgrade.
4.       Applicant contends his discharge was improper/inequitable due to command and NCIS impropriety .
5 .       Applicant contends his post-service achievements warrant consideration for a discharge upgrade.

Decision

Date: 20 1 2 0 808            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, i n accordance with U.S. Code, Title X, 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. A review of the Applicant’s records shows that he deployed to Afghanistan in support of Operation Enduring Freedom.

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. Th e Board complete d a thorough review of the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included 6105 counseling retention warnings (for violation of UCMJ Article 92 and assignment to the Marine Corps Body Composition Program) and for o f the Uniform Code of Military Justice (UCMJ): Article 89 (Disrespect toward superior commissioned officer, revealed personal information pertaining to two commissioned officers toward an audience of enlisted Marines, 20 January 2010), Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer, revealed personal information pertaining to one non commissioned officer toward an audience of enlisted Marines , 20 January 2010), Article ( Failure to obey an order or regulation , after being advised by the Battalion Chaplain to not disclose any confidential and personal information, an order which he violated , by disrespectfully revealing personal information about officers and a noncommissioned officer to enlisted members of the command, 20 January 2010). The record also revealed for of the UCMJ: Article ( Wrongful u se, possession, etc of a contro lled substance, cocaine, as evidenced by NAVDRUGLAB msg dated 22 May 2010 ). Based on the Article 112a violation , processing for administ rative separation is mandatory per the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) . When notified of a dministrative separation processing using the procedure on 17 September 2010 , the Applicant elected to exercise his right to consult with a qualified coun sel and submit a written statement , but waived his right to request an administrative separation board (per pre-trial agreement referenced in Staff Judge Advocate Review letter dated 5 April 2011) . The Applicant was sent to the Point Loma, CA, Substance Abuse Rehabilitation Program (SARP) for treatment on 11 October 2010. However, on 17 November 2010, he was removed from rehabilitation treatment and disenrol l ed as a treatment failure ( due to a diagnosed substance abuse disorder, self-reported previous narcotic drug dependence at age 19 that resulted in a one - year substance abuse treatment program, and manipulation and sabotage o f the SARP treatment program). On 29 January 2011, the Applicant’s Battalion Commander endorsed his administrative separation package . On 2 Mar 2011, the Applicant submitted a statement to the chain of command , stating in part that he realized “ my actions to knowingly use illegal drugs were wrong. ” On 23 March 2011, the Commanding Officer , Combat Logistics Regiment endorsed the Applicant’s administrative separation package recommending an Under Other Than Honorable Conditions discharge due to Misconduct - Drug Abuse.

On 6 April 2011, the Group Surgeon reviewed the Applicant’s administrative separation package, to include medical and service records, and sent a memorandum to the Commanding General, 3d Marine Logistics Group. In the memorandum, the Group Surgeon stated , “In review of (the Applicant’s) administrative separation package, I noted the diagnosis of P TSD was assigned by Dr J who evaluated (the Applicant) in the Tripler AMC Concussion Clinic on 19 Nov 2010 for complaints of headaches, irritability, and sleep difficulties. No history or physical examination findings were obtained to support a diagnosis of traumatic brain injury (TBI). He was diagnosed as having a possible mild concussion during the deployment based on self history. No referrals or treatment recommendations were provided during the visit for PTSD. The PTSD diagnosis was based on his self-reported history without delineating any diagnostic criteria. On 1 Nov 2010, (the Applicant) underwent an extensive psychiatric evaluation during the intake process as the Point Loma Medicine Substance Abuse and Rehab Center in San Diego CA. During that interview he detailed a significant history of narcotic drug dependence at age 19 and involvement in a one-year treatment program. He also stated that his poly drug usage started during a deployment to Afghanistan in Oct 2008-May 2009. He stated he was exposed to ‘a great deal of carnage, that he was in fear of his life every day, and lost nine friends or coworkers . ’ During that psychiatric evaluation, the Mental Health provider did not make the diagnosis of PTSD or list it as a significant medical issue. His subsequent treatment was unsuccessful due to his manipulation and efforts to sabotage the therapy and he was dropped from the program with a ‘ poor ’ prognosis for rehabilitation. On 19 Nov 2010, he was evaluated in the Post Deployment Health Clinic, diagnosed as adjustment disorder with anxiety, found psychiatrically fully fit for duty, and again no finding of PTSD was noted. Since those evaluations he has not requested nor been receiving any treatment from mental health or PTSD specialists. His multiple visits to the clinics have been related to various ailments, mainly musculoskeletal. Based on the review of the record, I see no direct evidence to support the diagnosis of either Traumatic Brain Injury or Post - Traumatic Stress Disorder as medical issues related to the Marine’s misconduct or resumption of a pre-service pattern of significant illegal drug usage. ” On 7 April 2011, the Separation Authority (Commanding General, 3d Marine Logistics Group), after reviewing the Applicant’s entire record of service, the facts and circumstances surrounding his misconduct, and the potential for further service directed that the Applicant be administratively separated from the Marine Corps with an Under Other Than Honorable Conditions discharge due to Misconduct - Drug Abuse. The Applicant was discharged as directed on 28 May 2011.

: (Nondecisional) The Applicant seeks a discharge upgrade to obtain veteran 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. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.
: (Decisional) ( ) . The Applicant contends PTSD resulting from traumatic events mitigates the misconduct for which he was separated. The Applicant’s record of service reveals that the Applicant deployed to Afghanistan from October 2008 to May 2009. In September 2009, he was evaluated at Tripler Army Medical Center (TAMC) due to a suicide ideation and subsequently referred for intensive substance abuse outpatient treatment . Several months later, in May 2010, the Applicant tested positive for cocaine on a command - directed urinalysis. O n 22 May 2010, the Applicant was treated at Castle Hospital , HI for a suicide attempt with an overdose of Wellbutrin and cuts made with a razor blade. After stabilization, the Applicant was transferred to TAMC and received a mental health evaluation. Upon completion, the Applicant was diagnosed with AXIS I: Cocaine Dependence , Substance Induced Mood Disorder , and PTSD . The Applicant was released from the hospital on 2 June 2010 and placed into pre-trial confinement (pending referral of charges for trial by S pecial C ourt- M artial) after being determined to be a possible flight risk. The Applicant was released from pre-trial confinement on 24 August 2010 and received Summary Court - Martial (as a result of pre-trial agreement) on 27 August 2010 for violation of UCMJ Article 112a (wrongful use of cocaine). The Applicant was subsequently processed for administrative separation , which is mandatory for violations of UCMJ Article 112a. On 6 April 2011, the 3d MLG Group Surgeon reviewed the Applicant’s medical and service records and provided the Applicant’s command with an endorsement stating he found no direct evidence to support the diagnosis of either Traumatic Brain Injury or PTSD as medical issues related to the Applicant’s misconduct or resumption of his pre-service pattern of illegal drug us e . While t he Applicant may feel that PTSD was the underlying cause of his misconduct, the record clearly reflects his misconduct was willful and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions . Accordingly, and with no credible evidence to rebut or otherwise question the presumption of regularity in this case, the NDRB determined the Applicant’s issue did not provide a basis for which relief could be granted. Relief denied.



Issues 3-4 : (Decisional) ( ) . The Applicant contends his participation in the NCIS witness program warrants consideration for a discharge upgrade ; additionally, he contends his discharge was improper/inequitable due to command and NCIS impropriety leading to his separation from the Marine Corps. T he NDRB is not an investigative body, and allegations of command legal or administrative impropriety should be made to the Naval Inspector General ’ s Office. Allegations notwithstanding, the Board conducted a detailed review of the Applicant’s records to determine whether his discharge met the pertinent standards for propriety and equity. After detailed analysis and consideration of all the available evidence, the NDRB found that the Applicant’s significant misconduct, which included fraudulent enlistment and illegal drug use in garrison and while deployed to a combat zone, warranted trial by punitive courts-martial (special or general) that could have resulted in confinement and a punitive discharge . However, the Applicant’s command opted not to try him by special or general court-martial and accepted a pre-trial agreement with the Applicant that , instead, resulted in trial by summary court-martial and an a dministrative separation. Although the Applicant contends command impropriety, he failed to submit credible evidence to support his claim. The NDRB, after extensive review of the Applicant’s service and medical records, could find no evidence to support the Applicant’s contention. Although administrative and/or legal oversight or errors may have occurred in the months leading up to the Applicant’s administrative separation from the Marine Corps, the Board could find no materially significant event that would have undermined the propriety or equity of the Applicant’s administrative separation for M isconduct - D rug A buse. After careful consideration, and with no credible evidence submitted by the Applicant to rebut or otherwise question the presumption of regularity in this case, the NDRB determined th e Applicant’s discharge was proper, equitable and in accordance with the applicable orders and directives in effect at the time of his discharge , and therefore, this iss ue did not provide a basis for which relief could be granted. Relief denied.

Issue 5 : (Decisional) ( ) . The Applicant contends his post-service achievements warrant consideration for a discharge upgrade. The NDRB considers post-service conduct in order to determine if the misconduct committed during active duty was indicative of the Applicant ’ s character or an aberration. However, there is no law or regulation that provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. The Applicant provided service record documentation, personal records, Department of Veteran s Affairs correspondence, evidence of substance abuse rehabilitation/treatment, character reference letters, and a personal statement as evidence of post-service accomplishments. Although his efforts to improve his life are noteworthy, he failed to provide adequate documentation and evidence on his behalf to support a thorough post-service conduct review. He could have submitted documentation as specified in the Post-Service Conduct paragraph in the Addendum , however, c ompletion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis. After review of all the available documentation, and w ithout any additional post-service documentary evidence, the Board determined the awarded characterization of service shall remain Under Other Than Honorable Conditions. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries and the administrative separation 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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