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USMC | DRB | 2013_Marine | MD1300425

Original file (MD1300425.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20121227

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)       19980611 - 19981214     Active: USMC 19981215 - 20030827 HON

Period of Service Under Review:
Date of Current Enlistment: 20030828     Age at Enlistment:
Period of E nlistment : 2 Years 0 M onth
Date of Discharge: 20070313      H ighest Rank:
Length of Service : Y ea rs M on ths 13 D a ys
Education Level:        AFQT: 49
MOS: 0341
Proficiency/Conduct M arks (# of occasions): 2.5 ( 5 ) / 2.2 ( 5 )      Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (2) EMMC (2) MUC LoA -N

NJP:     CC:

SCM:

- 20040120 :       Art icle (Absence without leave, 2 specifications )
         Specification 1: On or about 20040105 until on or about 20040106
         Specification 2: Absent from appointed place of duty on 20040107
         Article 92 (Failure to obey order or regulation)
         Article 112a ( Wrongful use, possession, etc. of controlled substances , 2 specifications )
         Specification 1: Methamphetamine on or about 20031209
         Specification 2: Amphetamine on or about 20031209
         Sentence : (20040120 - 20040212, 23 days)

SPCM:

- 20050610 :       Art icle (Absence without leave , 2 specifications )
         Specification 1: 20040414 - 20040604, 51 days
         Specification 2: 20040612 - 20041001, 110 days
         Art icle ( Wrongful use, possession, etc. of controlled substances , 2 specifications )
         Specification 1: Methamphetamine on or about 20040112
         Specification 2: Methamphetamine on or about 20041216
         Article 92 (Failure to obey order or regulation)
         Sentence : CONF 120 days (20050610 - 20050825, 7 7 days)


Retention Warning Counseling :

- 20050105 :       For wrongful drug involvement: Amphetamine/Meth amphetamine usage, as identified through urinalysis DEC 16, 2004 and confirmed by NavDrugLab San Diego MSG #5350-4.

- 20050404 :       For illegal drug related incident on March 7, 2005 specifically, Methamphetamine/Amphetamine usage identified through urinalysis and confirmed by NavDrugLab MSG R 232249Z MAR 05.

- 20050613 :       For illegal drug related incident on May 4, 2005 specifically, Methamphetamine/Amphetamine usage identified through urinalysis and confirmed by NavDrugLab MSG F00841067

- 20050708 :       For illegal drug related incident on June 6, 2005 specifically, Methamphetamine/Amphetamine usage identified through urinalysis and confirmed by NavDrugLab MSG F00858991.

- 20050708 :       For illegal drug related incident on June 9, 2005 specifically, Methamphetamine/Amphetamine usage identified through urinalysis and confirmed by NavDrugLab MSG F00859987.

Administrative Corrections to the Applicant’s DD 214

The NDR B did note administrative error s on the original DD Form 214:

         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 981215 UNTIL 030827 ”

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. 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. The Applicant seeks clemency , contending his deployment to Iraq and Post-Traumatic Stress Disorder (PTSD) mitigate his misconduct .

Decision

Date: 20 1 3 0326 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 , in accordance with U.S. Code, Title 10, Section 1553 (d)(1), the Naval Discharge Review Board included a member who is a physician, clinical psychologist, or psychiatrist. In accordance with S ection 1553 (d)(2), the service secretary expedited a final decision and accorded the case sufficient priority to achieve an expedited resolution. The Applicant’s military service record documents that he is a combat veteran who completed a deployment to Iraq in support of Operation IRAQI FREEDOM from March 2003 to May 2003. The military service record further documents that he was awarded a Combat Action Ribbon for his service.

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 NDRB 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 warnings, for o f the Uniform Code of Military Justice (UCMJ): Article (Absence without leave, 2 specifications: On or about 20040105 until on or about 20040106 and Absent from appointed place of duty on 20040107) , Article 92 (Failure to obey order or regulation) , and Article 112a (Wrongful use, possession, etc. of controlled substances, 2 specifications: Methamphetamine on or about 20031209 and Amphetamine on or about 20031209) , and for of the UCMJ: Article (Absence without leave, 2 specifications: 2 0040414 - 20040604, 51 days , and 20040612 - 20041001, 110 days), Article 92 (Failure to obey order or regulation), and Article 112a (Wrongful use, possession, etc. of controlled substances, 2 specifications: Methamphetamine on or about 20040112 and Methamphetamine on or about 20041216 ) . Additionally, t he record documents the Applicant was pronounced a deserter on 4 April 2004 for being UA for 119 days, for which no adjudication was found in the records. The Applicant also had a pre-service drug waiver for using marijuana 100 times and crack cocaine once prior to entering the Marine Corps . The Applicant’s service record documents a punitive conviction and punishment, as adjudged by a Special Court-Martial, on 10 June 2005. A qualified legal defense counsel represented the Applicant throughout the trial by Special Court-Martial process. Given the facts of the case, the Special Court-Martial awarded the Applicant a Bad Conduct Discharge and confinement for a period of 77 days. The case was submitted for review to the U.S. Navy-Marine Corps Court of Criminal Appeals without assignments of error; it was reviewed and the findings were affirmed on 23 February 200 7 . Subsequently, the Navy Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed.

: (Decisional) ( ) . The Applicant seeks clemency, contending his deployment to Iraq and PTSD mitigate his misconduct. He stated on his DD Form 293 to the NDRB that he was diagnosed with PTSD while in the Brig. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. The NDRB requested all records of medical treatment, both active duty and post-service , but the Department of Veterans Affairs w as unable to locate them. Furthermore, the NDRB did not find any reference to a medical diagnosis of PTSD in the Applicant’s service record to support his claim, and the Applicant did not provide any documentary evidence of a medical

diagnosis by competent medical authorities to support his claim. Though the Applicant may feel that PTSD was the underlying cause of his misconduct, the record reflects willful misconduct that 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. Lacking any evidence of PTSD and in light of multiple instances of illegal drug use and periods of extended unauthorized absence during his current enlistment, the NDRB determined his deployment to Iraq and PTSD did not mitigate his misconduct. Clemency 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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USMC | DRB | 2013_Marine | MD1300425

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