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USMC | DRB | 2013_Marine | MD1300649
Original file (MD1300649.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20130228
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)       20030821 - 20030914     Active:            20030915 - 20070118

Pre-Service Drug Waiver:

Period of Service Under Review:
Date of Current Enlistment: 20070119     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20090724      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 06 D a y ( s )
Education Level:        AFQT: 42
MOS: 0311
Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (3) (2) NDSM

Periods of UA / CONF :

NJP:     SCM:              CC:      Retention Warning Counseling :

SPCM:

- 20090121 :       Article (Wrongful use, possession, etc. of controlled substances , marijuana 224 ng/m l )
         Sentence : 75 DAYS (20090121-20090323, 62 days)

Administrative Corrections to the Applicant’s DD 214

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

          Block 12c, “ 0 5 0 8 0 8 ”
         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 20030915 UNTIL 070118 ”

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 contends he was treated unfairly and unjust ly .
2.       The Applicant contends his command did not help him with his issues.
3.       The Applicant contends his in-service conduct warrants an upgrade.
 4.       The Applicant contends Post-Traumatic Stress Disorder ( PTSD ) mitigates his misconduct.

Decision

Date: 20 1 3 1001            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 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’s service record documents completion of two deployment s i n the Al-Anbar Province of Iraq. The dates of the first deployment are not in the service record, however, the Applicant was awarded the Purple Heart for being wounded in action on 09 November 2004. The Applicant’s second deployment to the Al-Anbar Province of Iraq was from September 2007 to April 2008. Both deployments were 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 for of the UCMJ: Article (Wrongful use, possession, etc. of controlled substances, marijuana 224 ng/ml) . The Applicant a pre-service drug waiver for using marijuana prior to entering the Marine Corps, acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 20 August 2003 . Based on the Article 112a violation , 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, submit a written statement , and request an administrative board .

: (Decisional) ( ) . The Applicant contends he was treated unfairly and unjust ly . 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. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was wrongfully discharged. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. The record shows the Applicant pled guilty at S pecial C ourt- M artial to the wrongful use of marijuana. The sentence, however, did not contain a punitive (i.e., Bad Conduct) discharge, and the Applicant was returned to his command after he completed his confinement. His command then notified the Applicant of administrative separation processing for Misconduct (Drug Abuse). In the notification, his commanding officer considered the Applicant’s combat service and Purple Heart when recommending his discharge Under Other Than Honorable Conditions. The Applicant waived his rights to consult with a qualified counsel, submit a written statement to the Separation Authority, and appear before an administrative separation board. Because he did not receive a punitive discharge at Special Court-Martial, his administrative discharge had to be approved by the Secretary of the Navy, who has delegated that authority to the Commandant of the Marine Corps. The Applicant’s service record contains approval from the Deputy Commandant, Manpower and Reserve Affairs (who properly acted for the Commandant) for the Applicant’s Under Other Than Honorable Conditions discharge for Misconduct (Drug Abuse). The NDRB determined the Applicant received full due process, was treated fairly and justly, and warranted separation. Relief denied.

: (Decisional) ( ) . The Applicant contends his command did not help him with his issues. 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. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that his command erred in handling the Applicant or his issues. While in confinement, the Applicant began his evaluation with the Consolidated Substance Abuse Counseling Center, which recommended his assignment to Early Intervention. The Applicant was subsequently assigned to the Early Intervention Course and completed the course on 21 April 2009. The intent of this treatment is for the benefit of the Applicant after discharge, not to rehabilitate the Applicant for continued service. The NDRB discerned no impropriety or inequity in the Applicant’s discharge. Relief denied.
: (Decisional) ( ) . The Applicant contends his in-service conduct , to include combat deploymen ts and receiving a Purple Heart, a Combat Action Ribbon, and other medals warrants an upgrade. The Applicant received an Honorable discharge for his first enlistment from September 2003 to January 2007. Each period of enlistment is an independent obligation and characterization is determined for that specific period of time. During his second enlistment, the Applicant was found guilty at Special Court-Martial of violating UCMJ Article 112a for using marijuana. Based on the Applicant’s record of service in his second enlistment , the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service, and the awarded characterization of service was warranted. Relief denied.
4: (Decisional) ( ) . The Applicant contends PTSD mitigates his misconduct. The Applicant’s Department of Veterans Affairs ( VA ) medical records show the Applicant’s only history of mental health treatment occurred between May and Aug ust 2011 when he saw a social worker at a VA clinic for PTSD symptoms. The Applicant submitted no diagnoses or treatment in support of his contention. In determining discharge characterization of service, the Applicant’s conduct forms the primary basis for consideration. The Applicant’s in-service conduct included one S pecial Court-Martial that w as a willful failure to meet the requirements of his contract honorably. 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. After an exhaustive review, the NDRB determined PTSD did not mitig ate the Applicant’s 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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