Upgrade.Vet

USMC | DRB | 2012_Marine | MD1200948

Original file (MD1200948.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20120321

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)       20040624 - 20050612     Active:

Period of Service Under Review:
Date of Current Enlistment: 20050613     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 2009 121 8      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 26 D a y ( s )
Education Level:        AFQT: 52
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle LoA

Pre-Trial CONF : 20080509 - 20080625 (48 days)

NJP:
- 20070329 :       Article 107 (False official statement , 20070301 )
         Article (Wrongful use, possession, etc, of a controlled substance, marijuana, o/o 20070302 )
         Article 1 1 3 (Misbehavior of a sentinel or lookout , used a controlled substance while assigned as assistant duty NCO for H-24 )
         Awarded: (to E-2) (60 days) Suspended:

- 20080222 :      Article (False official statement , 20080116 )
         Article 121 (Larceny)
         Awarded: (to E-1) Suspended: (suspend 6 months)

SCM:     CC:

SPCM:
- 20080626 :       Art icle 80 (Attempts - attempt to wrongfully possess some amount of Percocet, a schedule II controlled substance, by fraudulently presenting a prescription for said Percocet to a pharmacist , o/o 20080509 )
         Art icle (Drunken or reckless operation of vehicle, under the influence of Percocet , o/o 20080408 )
         Article 112a (Wrongful use, possession, etc., of a controlled substance , marijuan a , 20080328-20080408 )
         Sentence : CONF 90 DAYS (20080509 - 20080625, 48 days)
         CA action (20080925): Sentence is approved and, except for BCD, will be executed, but the execution of that part of sentence extending to all confinement in excess of time served is suspended for 12 months . In addition, the BCD is suspended for a period of 6 months.
         * BCD vacated on 20081105 due to violations of UCMJ Articles 121 and 130 on 20081003 .

Retention Warning Counseling : 1

- 20050705 :       For your fraudulent enlistment in the Marine Corps (Delayed Entry Program) by not admitting the accurate date of your pre-service drug use. Specifically, a urinalysis administered on 20050616 showed you tested positive for THC with a result of 56. While you did not admit to this at the “Moment of Truth” on 20050616 and were not granted a CG level waiver for such, you had a positive urinalysis for marijuana.

Page 11 Counseling: 1

- 20080222 :       For being found guilty at Battalion NJP of a false official statement (Art 107) and larceny (Art 121) . In addition, on 20070231 you were found guilty at Battalion NJP for wrongful use of a controlled substance (Art 112a) in that you tested positive for THC on urinalysis conducted on 20070302, and misbehavior of a sentinel or lookout (Art 113).

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. Paragraph 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURT-MARTIAL , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications .

C . 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 his in-service P ost-Traumatic Stress Disorder (P TSD ) diagnosis warrants consideration for clemency .

Decision

Date: 20 1 2 0 8 08          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. The Applicant served in combat in Iraq in support of Operation Iraqi Freedom and received the Purple Heart for wounds received in action and the Navy and Marine Corps Achievement Medal with Combat “V” for heroic performance in the performance of his duties as a machine gunner.

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 Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. With respect to a discharge adjudged by a court-martial case, 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. In response to the Applicant ’ s clemency request, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. The Applicant ’ s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The Applicant’s record of service included 6105 counseling retention warnings and for o f the Uniform Code of Military Justice (UCMJ): Article 107 ( False official statement, 2 specifications: M ade a written statement in which he denied using a controlled substance in his barracks room, 1 Mar 2007 and a nother statement that implicated a Lance Corporal as the Marine who smoked a joint in his barracks room, on 6 March 2007; with intent to deceive, made a false statement to a pharmacist that he lost his ID card and his unit was in Iraq and there was no one to help him get a new one, when SNM was actually assigned to Wounded Warrior Battalion - East , which is a non-deployed unit , 16 January 2008 ), Article 112a ( Wron g ful use, possession, etc of a controlled substance, marijuana, as evidenced by positive test result for marijuana on urinalysis conducted 2 March 2007 ), Article 113 ( Misbehavior of a sentinel or lookout , used a controlled substance while assigned as the assistan t duty NCO for H-24 ) , and Article 121 (Larceny). The Applicant’s record also reflected for of the UCMJ: Article 80 ( Attempts, to wrongfully possess some amount of Percocet, a scheduled II controlled substance, by fraudulently presenting a prescription f o r said Percocet to a pharmacist , Wilmington , NC, on or about 9 May 2008 ) , Article 111 (Drunken or reckless operation of a vehicle, physically controlled a passenger car while impaired by Percocet aboard MCB Camp Lejeune NC, on or about 8 April 2008), and Article 112a (Wrongful use, possession, etc of a controlled substance, wrongfully used marijuana, between o/o 28 March - 8 April 2008 ) . The record revealed that although t he Applicant did not have a pre-enlistment drug waiver, he did test positive for marijuana during his first week at recruit training (and was subsequently issued a 6 105 retention counseling warning) . Based on the repeated and serious nature of the offenses committed by the Applicant, his command referred him for trial by S pecial C ourt- M artial. On 26 June 2008, the Applicant was found guilty of violating UCMJ Article 80 (Attempts), Article 111 (Operating a vehicle under the influence of a controlled substance), and Article 112a (Wrongful use, possession, e tc of a controlled substance).

: (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. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

: (Decisional) ( ) . The Applicant contends his combat service, combat wound, and in-service PTSD diagnosis warrants consideration for clemency. Although the Applicant’s medical record indicates he was diagnosed with PTSD while in service , 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 . The Applicant received a paragraph 610 5 retention warning at boot camp for failing to disclose his illegal use of marijuana just prior to shipping for recruit training. Additionally, while in service, he received punishment at two separate NJPs for making false official statements, larceny, misbehavior of a sentinel, and wrongful use of controlled substances. Moreover, upon being found guilty and convicted at S pecial C ourt- M artial of attempts to wrongfully possess a controlled substance, operating a motor vehicle under the influence of a controlled substance, and wrongful use of a controlled substance, the Applicant received a six- month suspension of the punitive B ad C onduct D ischarge (BCD) . However, due to his further misconduct as evidenced by the Applicant’s house breaking and theft of a fellow Marine’s video gaming system on or about 3 October 2008, the BCD was vacated in November 2008. After careful consideration of the Applicant’s record of service, the facts and circumstances surrounding his punitive discharge, the evidence submitted by the Applicant, and his combat service, heroism and combat wound, in conjunction with the repeated and varied serious misconduct both before and after service in Iraq, the NDRB determined this issue did not provide a basis for which relief cou ld be granted. The Applicant was given multiple chances to correct his behavior, but each time, he committed additional serious offenses. Relief denied.

The U.S. Department of Veterans Affairs (VA) has announced special access to combat veterans discharged under other than dishonorable conditions. The VA determines the eligibility for enrollment independent of the Applicant’s characterization of service as determined by the Navy. Effective 28 January 2008, combat veterans discharged from active duty on or after 28 January 2003 are eligible for combat-veteran enhanced eligibility and enrollment placement into Priority Group 6 (unless eligible for higher enrollment Priority Group placement) for five years after discharge. The Applicant, as a combat veteran, is encouraged to contact the VA for more information at or http://www.ptsd.va.gov/public/pages/help-for-veterans-with-ptsd.asp and http://www.va.gov/healthbenefits/vhbh/ . Additionally, support is available by phone at: 1-877-222-VETS (8387).

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and the punitive 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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USMC | DRB | 2012_Marine | MD1200948

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