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USMC | DRB | 2012_Marine | MD1201640
Original file (MD1201640.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20120726
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)       20070713 - 20080629     Active:  

Pre-Service Drug Waiver:

Period of Service Under Review:
 Date of Current Enlistment: 20080630     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20111025      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 36 D a y ( s )
Education Level:        AFQT: 62
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

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

Periods of CONF :

NJP:     SCM:     SPCM:    CC:

Retention Warning Counseling:

- 20101119 :      For violation of Article 86 of the UCMJ in that you did not go to the Division Training Center as instructed on 20101116-20101117 for required pre-deployment training.

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:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

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 misconduct was an isolated incident in an otherwise honorable period of service.
2.       The Applicant contends a single incident of hospitalization, which included his admission of a single use of Spice while heavily medicated and medical treatment marked by misdiagnoses, mistreatment, misinformation, and questionable conduct by the hospital staff, led to his General discharge characterization.

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

 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. T he Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included 6105 counseling warning . The Applicant a cknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 11 July 2007 . As a result of the Applicant’s self-admission to the use of Spice, his command processed him for administrative separation. Based on the violation of the Marine Corps drug policy, processing for administ rative separation is mandatory. When notified of a dministrative separation processing using the procedure for Misconduct (Pattern of Misconduct) and Misconduct (Drug Abuse) , the Applicant rights to consult with a qualified coun sel and submit a written statement but did elect his right to appear before an administrative separation board. The administrative separation board voted 3-0 that a preponderance of the evidence supported the bases for separation ( P attern of M isconduct and D rug A buse), and they further recommended separation with a General (Under Honorable Conditions) characterization of service. Although the Applicant’s battalion commander, after interviewing the Applicant, recommended an Under Other Than Honorable Conditions characterization of service, the Separation Authority concurred with the administrative separation board’s recommendation s and ordered the Applicant to be discharged for Misconduct (Drug Abuse) with a General (Under Honorable Conditions) characterization of service.
: (Decisional) ( ) . The Applicant contends his misconduct was an isolated incident in an otherwise honorable period of service. Certain serious offenses warrant separation from the service to maintain proper order and discipline. Violation of the Marine Corps zero-tolerance drug policy is one such offense requiring mandatory processing for administrative separation regardless of grade , performance, deployments, awards, or time in service. This usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. Based on the Applicant’s record of service, the NDRB determined the Applicant’s service was honest and faithful but significant negative aspects of his conduct or performance of duty outweighed the positive aspects of his service record, and the awarded characterization of service was warranted. Relief denied.
: (Decisional) ( ) . The Applicant contends a single incident of hospitalization, which included his admission of a single use of Spice while heavily medicated and medical treatment marked by misdiagnoses, mistreatment, misinformation, and questionable conduct by the hospital staff, led to his General discharge characterization. After a complete review of the records, the NDRB determined his administrative discharge proceedings were not the result of his single hospitalization. Rather, it was his admitted use of Spice that led to his administrative discharge proceedings. Taking into account a retention warning from November 2010 for violating UCMJ Article 86 (Unauthorized absence), he was notified of separation processing for Misconduct (Pattern of Misconduct) and Misconduct (Drug Abuse). In addition to the one-time use of Spice that the Applicant does not remember relaying to medical personnel during his

hospitalization, during a 17 February 2011 appointment with Division Psychiatry at Naval Hospital, Camp Lejeune, the medical provider stated, “ It should be noted that while the patient claimed to have smoked Spice only once prior to his admission (allegedly to prove that it could be done without being caught), he reported smoking Spice regularly, on the order of 3-5 times a week, for 5 weeks prior to his admission. This information was not available at the time of the patient’s admission.” On 21 February 2011, this medical provider stated, “Based on this new information regarding the patient’s Spice use, suspect that his condition was substance related and not Bipolar I.” Finally, the record contains a 2 May 2011 written statement from the Applicant where he writes, “In December 2010, I had used the drug Spice. I used this drug throughout the first two weeks of December, and my last usage was December 13, 2010. I was not caught in the action of doing so, I openly admitted my usage of the drug while I was in medical treatment at the psychiatric ward at Naval Hospital, Camp Lejeune.” The Applicant’s admitted use of Spice is a violation of the Marine Corps drug policy and warranted administrative separation. The Applicant was notified by his commanding officer that he was recommending a discharge characterization of Under Other Than Honorable Conditions, which is completely in line with what other Marines are recommended for after committing drug abuse. The Applicant elected to appear before an administrative separation board, which voted to recommend a General (Under Honorable Conditions) characterization of service. The Separation Authority concurred, and the Applicant was discharged accordingly. After a complete review of the records and statement and documentation submitted by the Applicant, the NDRB determined his discharge was warranted, proper, and very equitable. 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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