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USMC | DRB | 2013_Marine | MD1300141
Original file (MD1300141.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20121024
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to: END TERM OF SERVICE

Summary of Service

Prior Service:
 Inactive:         USMCR (DEP)       20071003 - 20080106     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20080107     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20120106      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 00 D a y ( s )
Education Level:        AFQT: 79
MOS: 1371
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214 and DD 215 ):   Rifle (2) ACM ( 2) LoA PH

Periods of UA / CONF :

NJP:

- 20101104 :      Article (Failure to obey order or regulation , 2 specifications )
         Specification 1: Wrongfully possessing Vibe Spice
         Specification 2: Wrongfully using Vibe Spice
          Awarded: Suspended: 1MONTH

- 20111214 :      Article (Drunken or reckless operation of vehicle, aircraft, or vessel)
         Article 112a (Wrongful use, possession, etc. of controlled substances, to wit: 1 oxycodone pill)
          Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling:

- 20110913 :      For failure to obey order or regulation , violates or fails to obey any lawful general order or regulation; having knowledge of any other lawful order issued by a member of the armed forces, which it is his duty to obey, fails to obey the order , or is derelict in the performance of his duties , shall be punished as a court-martial may direct. Specifically , you failed to report a traffic ticket received aboard Camp Lejeune in a timely manner. SNM was instructed to report any and all violations of orders, traffic incidents , or situations that could result in administrative or punitive actions being taken against Marines within the command.





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 seeks an upgrade to qualify for education benefits.
2 .       The Applicant contends his General characterization represents excessive, unjust, and cumulative punishment , particularly in light of his four years of service that included a combat tour in Afghanistan.
3 .       The Applicant contends his misconduct is mitigated by Post-Traumatic Stress Disorder (PTSD) and Traumatic Brain Injury (TBI) .

Decision

Date: 20 1 3 0411            Location: Washington D.C .         R epresentation : Gaston county dept of                                                veterans services

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. T he Applicant stated that he was diagnosed with PTSD and TBI related to his combat service in Afghanistan. The Applicant’s service record documents completion of a deployment in the Helmand Valley Province of Afghanistan from April to November 2009, conducting combat operations 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. 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 and two for o f the Uniform Code of Military Justice (UCMJ): Article ( Failure to obey order or regulation, 2 specifications), Articl e ( Drunken or reckless operation of vehicle, aircraft, or vessel, 1 specification), and Article ( Wrongful use, possession, etc. of controlled substances, 1 specification). The Applicant a pre-service drug waiver for using marijuana 40 times prior to entering the Marine Corps, acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 1 October 2007. Based on the Article 112a violation , processing for administ rative separation is mandatory. The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived rights to consult with a qualified coun sel or submit a written statement . He was not eligible for an administrative separation board.

: (Nondecisional) The Applicant seeks an upgrade to qualify for education 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 re-characterization 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. Furthermore, 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 General characterization represents excessive, unjust, and cumulative punishment , particularly in light of his four years of service that included a combat tour in Afghanistan. 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. With two NJPs and a retention warning, a preponderance of the evidence reviewed supports the conclusion that the Applicant committed multiple serious offenses, that he met the requirements for administrative separation for Misconduct (Drug Abuse), Misconduct (Serious Offense), and Misconduct (Pattern of Misconduct), that separation from the Marine Corps was appropriate, and that a General (Under Honorable Conditions) discharge was lenient since misconduct of his frequency and severity would typically result in an Under Other Than Honorable Conditions characterization of service. Relief denied.
: (Decisional) ( ) . The Applicant contends his misconduct is mitigated by PTSD and TBI . The Applicant submitted evidence documenting his PTSD and TBI events and subsequent behavior changes with diagnoses by competent medical aut horities to support his claim. The Department of Veterans Affairs assigned the Applicant a 70% disability rating for his PTSD as part of an overall 90% disability rating. All of the Applicant’s misconduct, which included the wrongful possession and use of Spice, drunken driving, and wrongful possession of a nonprescribed oxycodone pill, occurred after his deployment to Afghanistan that resulted in his PTSD and TBI. After a complete review of the records, however, it appears the Applicant’s command believed his PTSD and TBI mitigated his misconduct when recommending him for administrative separation with a General (Under Honorable Conditions) characterization instead of an Under Other Than Honorable Conditions characterization that was warranted by his frequent and serious misconduct. Upon further review, the NDRB determined sufficient mitigation had been applied to the Applicant’s case and that further mitigation by upgrading his discharge to Honorable was not warranted. While his PTSD and TBI may have mitigated his misconduct, it does not completely excuse or erase his willful decisions to wrongfully possess and use Spice, drive drunk, and wrongfully possess a nonprescribed controlled substance. 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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