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USMC | DRB | 2013_Marine | MD1300818
Original file (MD1300818.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)       20080128 - 20080713     Active:  

Pre-Service Drug Waiver:

Period of Service Under Review:
Date of Current Enlistment: 20080714     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20100805      H ighest Rank:
Length of Service : Y ea rs M on ths 22 D a ys
Education Level:        AFQT: 44
MOS: 0811
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

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

Periods of UA / CONF :

NJP:     SPCM:   CC:

SCM:

- 20100421 :       Art icle (Wrongful use, possession, etc. of controlled substances , 2 specifications )
         Specification 1: Between on or about 20091227-20100106, wrongfully use Marijuana (THC 269 ng/mL)
         Specification 2: Between on or about 20091227-20100201 , wrongfully use Marijuana (THC 881 ng/mL)
         Sentence :

Retention Warning Counseling :

- 20100615 :       For two counts of violation of Article 134, failure to report. On the dates of 20100614 and 20100615 I f ai led to report to my appointed place of duty for R o meo Battery morning accountability formation. I have been verbally counseled se vera l times for being late or not showing up to my appointed place of duty. I also missed a scheduled appointment on 20100527 with Deployment Health Services.

- 20091028 :       For concerning my misconduct as evidenced by my violation of Article 92, failure to obey an order or regulation and Article 113 , misbehavior of a sentinel. Specifically, I willfully violated the Standard Operating Procedures on post by not wearing my prescribed personal protective equipment and having my sleeping bag on post. I was also found sleeping on post.

- 20090209 :       For the following deficiencies: O n 20090208 SNM was in violation of Article 92x2 in that SNM did not sign out in the liberty log and wore civilian attire on P hase I liberty at the Marine Battery, Ft Sill, OK.


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 the Medical Officer failed to conduct an examination as required by Policy Letter 13-10 from Commanding General, 2nd Marine Division.
2.       The Applicant contends the Medical Officer exceeded his authority under Policy Letter 13-10 by seeking to discr edit the Applicant .
3.       The Applicant contends the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) does not provide for the creation of a medical officer’s report and, in this instance, its consideration violates both the MARCORSEPMAN and due process.
4.       The Applicant contends consideration of the Medical Officer’s report during administrative separation proceedings violates D epartment of Defense p olicy r egarding his Post-Deployment Health Assessment (PDHA) and Post-Deployment Health Re-Assessment (PDHRA).
5.       The Applicant contends the Medical Officer’s report is not accurate.
6.       The Applicant contends the Medical Officer’s report was given undue weight during the Applicant ’s administrative separation proceedings.
7.       The Applicant contends Post-Concussion Syndrome (PCS), Traumatic Brain Injury (TBI), and Post-Traumatic Stress Disorder (PTSD) mitigate his misconduct.

Decision

 Date: 20 1 3 1106            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 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. The Applicant’s service record documents completion of a deployment to Afghanistan 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 sta ndards of equity and propriety. The Applicant’s record of service included 6105 counseling warnings and for of the UCMJ: Article ( Wrongful use, possession, etc. of controlled substances, marijuana, 2 specifications). T he Applicant acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 23 J anuary 2008 . 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 .

Issues 1-5 : (Decisional) ( ) . The Applicant contends his discharge is improper because : (1) the Medical Officer failed to conduct an examination as required by Commanding General, 2nd Marine Division Policy Letter 13-10 , (2) the Medical Officer exceeded his authority under Policy Letter 13-10 by seeking to discredit the Applicant, (3) the MARCORSEPMAN does not provide for the creation of a medical officer’s report and, in this instance, its consideration violates both the MARCORSEPMAN and due process, (4) the Medical Officer’s report during administrative separation proceedings violates DoD p olicy r egarding his PDHA and PDHRA, and (5) the Medical Officer’s report is not accurate. 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 s . The Medical

Officer’s report of 28 April 2010 indicates the Applicant was screened for and diagnosed with PTSD and TBI . Additionally, the Medical Officer’s report list s E nclosure (3) as being medical records with respect to his PTSD/TBI diagnos e s. Although the NDRB did not have access to, nor did the Applicant provide, the medical reports detailing the Applicant’s PTSD and TBI diagnos e s, the NDRB presumed these medical records were available to the Applicant’ s chain of command and to the Separation A uthority ( Commanding General, 2nd Marine Division ) for consideration during the separation process. After reviewing the policies, orders, and directives pertinent to this case, to include MARADMIN 328/10, which summarizes command requirements before involuntary administrative separation of Marines and complies with National Defense Authorization Act FY10 Section 510 for cases involving PTSD and TBI, the NDRB determined the Medical Officer, 1st Battalion, 10th Marines, acted properly and within his authority. The NDRB presumed regularity in governmental affairs in that the Separation Authority and Staff Judge Advocate review of the discharge package ensured that the Applicant was afforded due process and all of his administrative rights pursuant to the separation process. Furthermore, during the separation proceedings, the Applicant waived his right to request a hearing before an Administrative Separation Board. If the Applicant believed there were mitigating circumstances, it was his obligation to contest those charges at the time they were made. During an Administrative Separation Board, he would have had the opportunity to mount a defense against the charges. Relief denied.

6: (Decisional) ( ) . The Applicant contends the Medical Officer’s report was given undue weight during the Applicant ’s administrative separation proceedings. After a review of appropriate orders and policies, the NDRB determined the Medical Officer acted within proper authority. The enclosures listed in the Medical Officer’s letter of 28 April 2010 ( PDHA of 21 October 2009, PDHRA of 27 April 2010, medical records , and sworn statements of commissioned officers ) were not in the Applicant’s service or medical record s , nor were they provided by the Applicant. The NDRB presumed regularity in that the aforementioned documents were available to the Applicant’s chain of command and to the Separation Authority and that the Separation Authority and Staff Judge Advocate review of the discharge package ensured the Applicant was afforded due process and all of his administrative rights pursuant to the separ ation process. Relief denied.

7: (Decisional) ( ) . The Applicant contends PCS, TBI, and PTSD mitigate his misconduct. The Applicant’s in-service conduct included three 6105 counseling warnings and a finding of guilt at a Summary Court-Martial for two violations of UCMJ Article 112a. Though the Applicant may feel that PCS, TBI, and PTSD w ere the underlying cause s of his misconduct, the record reflects willful misconduct and 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 a complete review of the records and the Applicant’s detailed and thorough application, t he NDRB determined PCS, TBI, and PTSD did not mitigate the Applicant’s misconduct and further determined his discharge was warranted, proper, and 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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