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USMC | DRB | 2013_Marine | MD1300764
Original file (MD1300764.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20130219
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)       20051028 - 20060213     Active:            20060214 - 20100331

Pre-Service Drug Waiver:

Period of Service Under Review:
Date of Current Enlistment: 20100401     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20120404      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 04 D a y ( s )
Education Level:        AFQT: 85
MOS: 0351
Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle ACM (2) CoC (2) (2) (2) LoA (3)

Periods of UA / CONF :

NJP:     SCM:              CC:      Retention Warning Counseling :

SPCM:

- 20111012 :       Art icle (Absence without leave - failure to go to evening formation)
         Art icle (Wrongful use, possession, etc. of controlled substances , 4 specifications )
         Specifications 1-3: Wrongful use of heroin
         Specification 4: Wrongful possession of heroin
          Sentence : FOR 6 MONTHS (20110811-20111011, 62 days) Suspended: CONF in excess of 2 months i n accordance with the pretrial agreement, the adjudged sentence to a BCD is disapproved.

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 Department of Veterans Affairs (VA) benefits.
2 .       The Applicant contends the Marine C orps did not provide an adequate exam by a board - certified psychiatrist or psychologist per DoD Instruction 1332.14.
3.       The Applicant contends he was denied due process by having it stipulated in his pre-trial agreement that he would waive his administrative board.
4 .       The Applicant contends his in-service conduct , to include his Purple Heart and Navy and Marine Corps Achievement Medal , warrants an upgrade.
5.       The Applicant contends P ost-Traumatic Stress Disorder (P TSD ) led to his misconduct.
Decision

 Date: 20 1 3 0801            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 to Iraq from March to August 2007 and from August 2008 to March 2009 , conducting combat operations in support of Operation IRAQI FREEDOM. In addition, the Applicant’s service record documents completion of a deployment in the Helmand Province of Afghanistan from November 2009 to March 2010 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. The Applicant’s record of service included for of the UCMJ: Article (Absence without leave - failure to go to evening formation) and Article (Wrongful use, possession, etc. of controlled substances , 4 specifications : Specifications 1-3: Wrongful use of heroin and Specification 4: Wrongful possession of heroin ). The Applicant a pre-service drug waiver for using marijuana six times prior to entering the Marine Corps, acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 27 October 2005 . In addition, the Applicant’s in-service medical record shows that he had an extensive history of substance abuse prior to the Marine Corps to include abusing vicodin (four pills every three days, at age 18) and oxycontin (two 80 mg pills daily, from age 19 to 22). 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 right to consult with a qualified coun sel, but waived his rights to submit a written statement and request an administrative board .

: (Nondecisional) The Applicant seeks VA benefits. The NDRB cannot grant a change based solely on this issue; however, the Applicant should be aware that the VA has announced special VA enrollment access for PTSD and mental health treatment to combat veterans discharged under other than dishonorable conditions. Effective Jan. 28, 2008, combat veterans discharged from active duty on or after Jan. 28, 2003 are eligible for combat veteran enhanced eligibility and enrollment placement into Priority Group 6 (unless eligible for higher enrollment Priority Group placement) for 5 years post discharge. Additionally, the VA determines the eligibility for enrollment in its programs - independent of the Applicant’s characterization of service as determined by the Marine Corps. The Applicant, as a combat veteran, is encouraged to contact his local VA affairs representative for more information and may request a review of service and determination of benefits from the VA. Alternately, he may call 1-877-222-8387 or visit the following website for more information: http://www4.va.gov/healtheligibility/Library/pubs/CombatVet/CombatVet.pdf .
: (Decisional) ( ) . The Applicant contends the Marine Corps did not provide an adequate exam by a board - certified psychiatrist or psychologist per DoD Instruction 1332.14. The Applicant contends he met the criteria to be further evaluated by a board - certified psychiatrist or psychologist. DoD Instruction 1332.14 states that a service member must receive a medical examination to assess whether the effects of PTSD or TBI constitute matters in extenuation that relate to the basis for administrative separation if the member is being administratively separated under a characterization other than Honorable; and was deployed overseas to a contingency operation during the previous 24 months; and is diagnosed by a physician, clinical psychologist, or psychiatrist as experiencing PTSD or TBI, or reasonably alleges the influence of PTSD or TBI based on deployed service to a contingency operation during the previous 24 months; and is not being separated under courts-martial or other proceedings conducted pursuant to appendix 2 of chapter 47 of the Manual for Courts-Martial. In a case involving PTSD, the medical examination required shall be performed by a clinical psychiatrist or psychologist . The service record clearly shows the Applicant was seen by competent medical authority and was determined not to have PTSD. The Applicant contends the screening was not done by a board - certified psychiatrist or psychologist, therefore, it was improper. The NDRB determined this contention is without merit since DoD Instruction 1332.14 does not prohibit physicians other than clinical psychologists or psychiatrists from conducting PTSD or TBI screenings; it only directs that any diagnosis of PTSD must come from a clinic al psychologist or psychiatrist. T here is no in-service record of the Applicant being diagnosed with PTSD or of him alleging that he had PTSD, therefore, an additional evaluation by a clinical psychologist or psychiatrist was not required. Further, the NDRB determined the Applicant’s OIC character statements on the Applicant’s mental state does not amount to a PTSD diagnosis by competent medical authority nor does it meet the criteria of the service member reasonably alleging the influence of PTSD. Additionally, the medical record clearly shows the Applicant was in fact seen by a psychiatrist on 12 Jan 2012, where the psychiatrist diagnosed the Applicant with Opio i d Dependence and Anxiety Disorder , but did not diagnose the Applicant with PTSD . The NDRB discerned no impropriety or inequity in the Applicant’s discharge. Relief denied.

: (Decisional) ( ) . The Applicant contends he was denied due process since his pre-trial agreement included a provision wherein the Applicant agreed to waive administrative separation processing in exchange for the Convening Authority disapproving a Bad Conduct Discharge if awarded. The Applicant’s records confirm his pre-trial agreement included such a provision. In support of his issue, the Applicant cited the case of U.S. v. Gansemer , 38 M.J. 340 (1993), which he contends held that inclusion of a provision waiving administrative separation processing within a pre-trial agreement was invalid and a denial of due process. The Applicant’s contention is in error. In point of fact, the court in Gansemer affirmed the decision of the United States Court of Military Review and held that the accused’s waiver of administrative discharge was a proper condition of a pre-trial agreement. Given the court’s holding, the NDRB found this issue to be without merit. Relief denied.

 4: (Decisional) ( ) . The Applicant contends his in-service conduct , to include his Purple Heart and Navy and Marine Corps Achievement Medal , warrants an upgrade. Based on the Applicant’s record of service, 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.
5: (Decisional) ( ) . The Applicant contends PTSD led to his misconduct. 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. T he 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. Possession and use of heroin were conscious decision s to violate the ten ets of honorable and faithful service. The NDRB determined PTSD did not mitigate 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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