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USMC | DRB | 2012_Marine | MD1201467
Original file (MD1201467.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20120627
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to: SECRETARY’S PLENARY AUTHORITY or PHYSICAL DISABILITY
        
Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       20050406 - 20050711     Active:   20050712 - 2009051 8 HON

Period of Service Under Review:
Date of Current Enlistment: 2009051 9     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20120224      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 5 D a y ( s )
Education Level:        AFQT: 33
MOS: 0241 /1371
Fitness R eports:

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

Periods of CONF :

NJP:

- 20110923 :       Article (Absence without leave , 4 specifications )
         Specification 1: 0730-1600, 20101012
         Specification 2: 20101021-20101022
         Specification 3: 0800, 20110505 until 1315, 20110517
         Specification 4: 1130, 20110602 until 1400, 20110613
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20110926 :       For your recent NJP for violating UCMJ Article 86x4.

Administrative Corrections to the Applicant’s DD 214

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

          “ 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 .



DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

 1.       The Applicant seeks to improve his employment opportunities .
2.       The Applicant contends his misconduct is a direct result of Post-Traumatic Stress Disorder ( PTSD ) and Traumatic Brain Injury ( TBI ) caused by combat service .
 3 .       The Applicant contends his command and Separation Authority failed to properly consider MARADMIN 328/10 and discharged him fo r misconduct rather than for a physical disability .
4.       The Applicant contends the government failed to present any evidence that supported the administrative board’s finding the specific reason “for your positive urinalysis testing on 02 November 2011 for wrongful use of a Schedule I controlled substance (Cocaine)” was proven by the preponderance of the evidence.
Decision

Date: 20 1 3 0509            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 and TBI, in 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 NDRB reviewed the Applicant’s statement; the Applicant stated that he was diagnosed with PTSD and TBI related to his combat service in Iraq. The Applicant’s record documents completion of a deployment in Al-Anbar Province , Iraq from July 2006 to January 2007 , conducting combat operations in support of Operation IRAQI 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. The Applicant’s record of service included 6105 counseling warning and for o f the Uniform Code of Military Justice (UCMJ): Article (Absence without leave, 4 specifications). The Applicant a pre-service drug waiver for using illicit drugs prior to entering the Marine Corps . acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 5 April 2005 . Based on an Article 112a violation (Wrongful use, possession, etc. of a controlled substance) , 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 request an administrative board . The administrative board voted 3-0 that the preponderance of the evidence support ed that the Applicant had conducted Misconduct (Drug Abuse) and recommended the Applicant be separated with a General (Under Honorabl e Conditions) characterization. The Separation Authority approved this recommendation, and the Applicant was discharged accordingly.

: (Nondecisional) The Applicant seeks to improve his employment 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.

: (Decisional) ( ) . The Applicant contends his misconduct is a direct result of PTSD and TBI caused by combat service. In determining discharge characterization of service, the Applicant’s conduct forms the primary basis for consideration. The Applicant’s in-service conduct included a n NJP for violating UCMJ Article (Absence without leave, 4 specifications) and documented use of cocaine that were willful failures to meet the requirements of his contract honorably. The Applicant’s official military service record diagnosis of PTSD/TBI supports his contention that he suffered from PTSD/TBI in service. However , the Applicant’s p sychiatrist stated during the administrative board , “I am aware that [the Applicant] used cocaine. To my knowledge, he was competent to know that he was doing wrong.”

The administrative board and Separati on Authority determined the Applicant’s PTSD /TBI w ere not sufficiently mitigating to excuse his misconduct . The record shows that proper consideration of the Applicant’s PTSD /TBI was given in the course of deciding whether to separate the Applicant and in determining the Applicant’s characterization of service. Therefore, the NDRB determined that further relief was not warranted. Relief denied.
: (Decisional) ( ) . The Applicant contends his command and Separation Authority failed to properly consider MARADMIN 328/10 and discharged him fo r misconduct rather than for a physical disability . A Commanding General, 2d Marine Aircraft Wing letter dated 21 February 2012 clearly states that the Commanding General, 2d Marine Aircraft Wing had reviewed medical documentation and determined that PTSD/TBI were contributing factors in the Applicant’s misconduct and decided to separate the Applicant with a General (Under Honorable Conditions) characterization . The NDRB presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary . The evidence provided by the Applicant does not overcome the presumption of regularity . The NDRB discerned no impropriety or inequity and determined the Applicant’s discharge was proper and equitable. Relief denied.

4: (Decisional) ( ) . The Applicant contends the government failed to present any evidence that supported the administrative board’s finding the specific reason “for your positive urinalysis testing on 02 November 2011 for wrongful use of a Schedule I controlled substance (Cocaine)” was proven by the preponderance of the evidence. The Commanding Officer, Marine Air Control Group 28 letter dated 09 February 2012 specifically address ed this issue and state d this error was identified and corrected on 13 October 2011. The NDRB determined the Applicant was processed for a legitimate urinalysis , and the error in dates do es not mitigate or excuse his misconduct. Relief denied.

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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