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USMC | DRB | 2013_Marine | MD1301485
Original file (MD1301485.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20130715
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)       20090522 - 20090526     Active:  

Pre-Service Drug Waiver:

Period of Service Under Review:
Date of Current Enlistment: 20090527     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20120927      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 01 D a y ( s )
Education Level:        AFQT: 60
MOS: 0331
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214 / DD 215 ):     ACM ( 3) (2) (2)

Periods of UA / CONF :

NJP:

- 20110724 :       Article (Failure to obey order or regulation)
         Awarded: Suspended:

- 20110921 :      Article ( Fail ure to obey order or regulation )
         Awarded : Susp ended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20110724 :       For my recent NJP on 20110724 for violating Article 92. Your lack of judgment, failure to obey orders and regulations, selfish actions , and disregard for your fellow Marines is not conducive to good order and discipline and brings discredit for your f e llow Marine s.

- 20110921 :       For my recent NJP on 20110921 for violating Article 92. Your lack of judgment, failure to obey orders and regulations, selfish actions , and disregard for your fellow Marines is not conducive to good order and discipline and brings discredit for your f e llow Marines.

- 20120711 :       For inappropriate wear of your civilian attire. Specifically , on 1100 , 20120626 you were stopped by the Battalion SgtMaj for wearing a doo rag on your head and your civilian trouser s worn in a manner in which your underwear and buttocks were showing.


Administrative Corrections to the Applicant’s DD 214

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

          “ ”

The NDRB will recommend to the Commandant of the Marine Corps , MMSB-13, 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 an upgrade to enhance employment and educational opportunities .
2.       The Applicant contends his discharge characterization is preventing him from receiving treatment for his service - connected P ost-Traumatic Stress Disorder (P TSD ) and T raumatic Brain Injury (T BI ) .
3.       The Applicant contends he is innocent of knowingly using THC , and his urinalysis confirmation could be a false positive from the use of prescribed medications and Afghan t obacco and food p roducts .
4.       The Applicant contends his in-service conduct warrants an upgrade.
5 .       The Applicant contends his post-service conduct is worthy of an upgrade.

Decision

Date: 20 1 4 0 320            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 TBI and 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 Afghanistan from January to August 2010 and from June 2011 to January 2012 , conducting combat operations in support of Operation ENDURING FREEDOM. His record further documents a TBI diagnosis resulting from combat injuries sustained on 24 June 2010.

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 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 o f the Uniform Code of Military Justice (UCMJ): Article ( Failure to obey order or regulation , ). Additionally, the Applicant tested positive for marijuana use as the result of a urinalysis. 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 2 December 2008 . Based on the violation of the Marine Corps zero-tolerance drug policy, 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 and request an administrative board . The Applicant’s administrative board found by majority vote that the preponderance of the evidence proved all acts or omissions alleged in the notification, recommended immediate separation, and recommended that the separation be Under Other Than Honorable Conditions. The Separation Authority concurred with the administrative separation board’s findings and ordered the Applicant to be discharged Under Other Than Honorable Conditions for Misconduct (Drug Abuse).

: (Nondecisional) The Applicant seeks an upgrade to enhance employment and 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 . 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 .




: (Nondecisional) The Applicant contends his discharge characterization is preventing him from receiving treatment for his service - connected PTSD and TBI . 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. The VA determines the eligibility for enrollment independent of the Applicant’s characterization of service as determined by the Marine Corps. Effective 28 January 2008, combat veterans discharged from active duty on or after 28 January 2003 are eligible for combat-veteran enhanced eligibility and enrollment placement into Priority Group 6 (unless eligible for higher enrollment Priority Group placement) for five years after discharge. 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 he is innocent of knowingly using THC, and his urinalysis confirmation could be a false positive from the use of prescribed medications and Afghan t obacco and food p roducts . The Navy Drug Screening Laboratory (NDSL) goes through a very thorough four-level analysis procedure, which includes immunoassay and gas chromatography/mass spectrometry testing, to accurately test all specimens, ensuring each positive sample is screened, re-screened, confirmed, and all procedures have been followed before a message is released. All three tests (screen, re-screen, and confirmation) must be positive before a positive result is reported to the command. After carefully reviewing the Applicant’s documentation, including the false-positive documentation provided by the Applicant, the NDRB determined it was not sufficient to prove his urinalysis results were false. Based on the NDSL message, the NDRB determined his urinalysis was not a false positive. Additionally, the Applicant’s c ommanding o fficer stated in his administrative separation recommendation letter that “the previous chain of command briefed the Marines and prohibited the use of local national tobacco products due to the probability that they would contain THC and other illicit drugs.” Relief denied.

Issue 4: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends his in-service conduct warrants an upgrade. The Applicant submitted 18 letters of character reference. During the Applicant’s 3 years and 4 months of service, he completed two combat deployments to Afghanistan, received a Purple Heart, received three retention warnings, was found guilty at two NJPs of violating UCMJ Article 92, received below-average Proficiency and Conduct marks of 3.8/3.7 over his enlistment , and tested positive for THC on a urinalysis . He was not, however, awarded a Good Conduct Medal, which requires 3 years of misconduct-free service. The confusion likely arose from Block 18 on his DD Form 214, which lists the restart of the three-year counter on 21 September 2011 and corresponds to the date of his second and final NJP. With his misconduct, he met the requirements to be administratively separated for Misconduct (Drug Abuse), Misconduct (Serious Offense), and Misc onduct (Pattern of Misconduct). Since he was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation , t he characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation. Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition. The NDRB also reviewed the records to determine if PTSD or TBI mitigate his misconduct. The NDRB found nothing to indicate that he was not responsible for his actions or should not be held accountable for his misconduct. Based on the Applicant’s record, the NDRB determined he 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 neither PTSD nor TBI mitigate his misconduct. Relief denied.
5 : (Decisional) ( ) . The Applicant contends his post-service conduct is worthy of an upgrade. The NDRB is authorized to consider post-service factors in the re-characterization of a discharge. However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question. Besides the Applicant’s statement on the DD Form 293, he failed to provide any documentary evidence on his behalf for post-service consideration. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum with the recognition that completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration. Without post-service documentary evidence, the Board determined the awarded characterization of service shall remain Under Other Than Honorable Conditions. 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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