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USMC | DRB | 2013_Marine | MD1301294
Original file (MD1301294.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20130424
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)       20071204 - 20080810     Active:  

Pre-Service Drug Waiver:

Period of Service Under Review:
Date of Current Enlistment: 20080811     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20120801      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 22 D a y ( s )
Education Level:        AFQT: 53
MOS: 6541
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle Pistol

Periods of UA / CONF :

NJP:

- 20090630 :      Article (Failure to obey order or regulation , by having a weapon in the barracks )
         Awarded : Susp ended:
SCM:

- 20120601 :       Art icle ( Wrongful use, possession, etc. of controlled substances , cocaine )
         Article 121 (Larceny and wrongful appropriation)
         Article 134 (General A rticle, soliciting another to commit an offense)
         Sentence :

SPCM:    CC:

Retention Warning Counseling :

- 20090630 :       For poor judgment, failure to follow rules and regulations. On 20090626 you violated Article 92 of the UCMJ. Specifically , you had weapons in the barracks in violation of MUO 1050.1H and ASO 5510.15C.

- 20110921 :       For your admission to the Camp Lejeune Naval Hospital for suicidal ideations on 20110815.

- 20111013 :       For your wrongful use of a controlled substance (cocaine). Drug use identified by UDS screening at the Naval Hospit al Camp Lejeune on 20110815.



- 201 20607 :       For you r Summary Court-Martial held on 20120601 for violations of Articles 112a, 121, and 134 of the UCMJ. Specifically , on 20110815, you wrongfully used cocaine. On or about 20110906 , you wrongfully solicited another Marine to steal Basic Allowance for Housing (BAH) by advising him to enter into a contract marriage. On or about 20111231 you stole various sums of money in the form of BAH/BAS.

Administrative Corrections to the Applicant’s DD 214

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

          “ MISCONDUCT ”
        
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 seeks to use the GI Bill.
2.       The Applicant contends her requests for help from her command for P ost-Traumatic Stress Disorder (P TSD ) and depression were ignored, and so she felt desperate and used cocaine to attempt suicide. She contends the General discharge is unfair since she sought help for her PTSD.

Decision

Date: 20131106            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 Djibouti , Africa 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 6105 counseling warnings, for o f the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation, by having a weapon in the barracks) , and for of the UCMJ: Article 112a (Wrongful use, possession, etc. of controlled substances, cocaine), Article 121 (Larceny and wrongful appropriation), and Article 134 (General A rticle, soliciting another to commit an offense). The Applicant a pre-service drug waiver for using illicit drugs prior to entering the Marine Corps . acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 0 3 December 2007 . The Applicant entered into a pre-trial agreement to plead guilty at a S ummary C ourt- M artial and waive her administrative separation board in return for S pecial C ourt- M artial charges being withdrawn and receiving a General (Under Honorable Conditions) discharge.

: (Nondecisional) The Applicant seeks to use the GI Bill. 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.
: (Decisional) ( ) . The Applicant contends her requests for help from her command for P TSD and depression were ignored, and so she felt desperate and used cocaine to attempt suicide. She contends the General discharge is unfair since she sought help for her PTSD. The record clearly shows the Applicant waived h er rights to trial by court-martial and an administrative separation board. If the Applicant felt there were mitigating circumstances to h er misconduct, it was h er obligation to contest those charges at the time they were made. During a trial or administrative separation board, s he would have had the opportunity to bring forth any mitigating circumstances. W hen reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an one’s ability to conform to the military’s standa rds of conduct and discipline. Though the Applicant may feel PTSD and depression were the underlying cause of h er misconduct, the record reflects she displ ayed willful and persistent misconduct by failing to obey orders, using cocaine, committing larceny, and soliciting others to commit an offense . T he record did not show that she was not responsible for h er conduct or should not be held accountable for h er actions. There is also nothing in her records, nor did she provide any evidence, that her command ignored her requests for help. Facing a punitive discharge at a Special Court-Martial, her command leniently agreed to administratively discharge her with a General characterization of service , most likely due to a medical finding from 1 December 2011 that stated her PTSD symptoms were a mitigating factor in her use of cocaine . The NDRB determined sufficient mitigation had already been given for her PTSD and depression and further mitigation is not warranted. 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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