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USMC | DRB | 2013_Marine | MD1301864
Original file (MD1301864.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20130913
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)       20070618 - 20070708     Active:  

Pre-Service Drug Waiver:

Period of Service Under Review:
Date of Current Enlistment: 20070709     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20120712      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 04 D a y ( s )
Education Level:        AFQT: 76
MOS: 6216
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

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

Periods of UA :

NJP:

- 20090228 :       Article (Failure to obey order or regulation, consumed alcohol while under the age of 21)
         Article ( Drunken or reckless operation of a vehicle, aircraft, or vessel , operated vehicle with BAC of .05)
         Awarded: Suspended:
SCM:

- 2012 0426 :       Article (Failure to obey order or regulation , 3 specifications )
         Specification 1: Wrongfully possessing Spice on or about 20120204.
         Specification 2: Wrongfully not producing on demand to Military Police personnel proof of insurance on or about 20120204.
         Specification 3: Wrongfully not producing on demand to Military Police personnel current vehicle registration on or about 20120204.
         Article (Drunken or reckless operation of a vehicle, aircraft, or vessel , 2 specifications )
         Specification 1: Aboard Marine Corps Air Station Miramar, physically control a vehicle while drunk on or about 20120204.
         Specification 2: Aboard Marine Corps Air Station Miramar, physically control a vehicle while alcohol concentration in his breath was shown by chemical analysis, equal to or exceeding .08 grams of alcohol per 210 liters of breath, which is the limit under California Vehicle Code section 23152 on or about 20120204.
         Article (Wrongful use, possession, etc. of controlled substances , 2 specifications
         Specification 1: Wrongfully use Temazepam, a Schedule IV controlled substance on or about 20120204.
         Specification 2: Wrongfully use Nordiazepam, a Schedule IV controlled substance on or about 20120204.
          Sentence: (Per DD 214: 20120426-20120519, 24 days)

SPCM:    CC:

Retention Warning Counseling:

- 20090228 :      For getting pulled over for driving in excess of 100 miles per hour with a BAC of .05 while under the age of 21.

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:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

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 served honorably both before and after the February 2012 incident, he deployed to Afghanistan, and he received numerous awards and decorations.
2 .        The Applicant contends P ost- T raumatic S tress D isorder (PTSD) , depression, panic disorder, agoraphobia, and the effects of the medications for these conditions mitigate his misconduct.

Decision

 Date: 20 1 4 0 403            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 a deployment to Afghanistan from November 2010 to February 2011, 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 standards of equity and propriety. The Applicant’s record of service included 6105 counseling warning, for o f the Uniform Code of Military Justice (UCMJ): Article ( Failure to obey order or regulation , ) and Article ( Drunken or reckless operation of a vehicle, aircraft, or vessel , ) , and for of the UCMJ: Article (Failure to obey order or regulation, ), Article (Drunken or reckless operation of a vehicle, aircraft, or vessel, ) , and Article ( Wrongful use, possession, etc. of controlled substances , ). 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 15 June 2007. 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 and request an administrative board but right to submit a written statement.
Issue 1: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends he served honorably both before and after the February 2012 incident, he deployed to Afghanistan, and he received numerous awards and decorations. Despite a servicemember’s prior record of service, certain serious offenses warrant separation from the to maintain proper order and discipline. Violation of Article 112a is one such offense requiring mandatory processing for administrative separation regardless of grade, performance, or time in service. This usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The Applicant was found guilty of violation of Articles 92, 111, and 112a at a Summary Court-Martial in addition to receiving a retention warning and being found guilty at NJP earlier in his enlistment. However, his command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances. Relief denied.





: (Decisional) ( ) . The Applicant contends PTSD , depression, panic disorder, agoraphobia, and the effects of the medications for these conditions mitigate his misconduct. T he Applicant provide d in-service and post - service medical documentation. The Applicant’s in-service documentation noted the reporting of PTSD-like symptoms upon his return from Afghanistan , at a Substance Abuse Counseling Center, and at his separation physical. The Substance Abuse Counseling Center notes from 22 February 2012 include the Applicant admitting to “smoking Spice 4 times initially (Jan-Nov 2010); 3 times from Aug-Dec 2011; and 1 time (Jan-Feb 2012).” The NDRB notes that the 4-time Spice usage between January and November 2010 occurred before his deployment to Afghanistan. The physician for his separation physical in June 2012 noted that he was being treated with Zoloft for depression and adjustment disorder and was fit for separation. Post-service documentation included multiple visits with a civilian healthcare provider for the treatment of PTSD, depression, and panic disorder with agoraphobia. Though the Applicant may feel that PTSD , depression, panic disorder, agoraphobia, and the effects of these medications were underlying cause s 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. After a complete review of the Applicant’s service and medical records and documentation submitted by the Applicant, the NDRB determined PTSD did not mitigate his misconduct, and 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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