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USMC | DRB | 2014_Marine | MD1400143
Original file (MD1400143.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20131106
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)       20030730 - 20040601     Active:   20040602 - 20040729 UNC
         USMCR (DEP)      20050825 - 20050828

Pre-Service Drug Waiver:

Period of Service Under Review:
 Date of Current Enlistment: 20050829     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20090715      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 17 D a y ( s )
Education Level:        AFQT: 50
MOS: 3531
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

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

Periods of UA / CONF :

NJP:

- 20080807 :      Article (Wrongful use, possession, etc. of controlled substances , MARIJUANA )
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling:

- 20060313 :      For your disregard for the rules and regulations that are set. On or about 20060225 you violated DetO 1050.1C by staying on liberty past 2359 and disobeying the Company 1 st Sergeant by not loggin g in/out of liberty logbook.

- 200 80415 :      On 20071126 you were pending charges by the District Court of Onslow County, NC for: (3 Charges) Assault with a Deadly Weapon with the Intent to Kill, (1 Charge) Discharge of F irearm into Occupied Dwelling.

NDRB Documentary Review Conducted (date):        20130206
 NDRB Documentary Review Docket Number:   MD13-00502
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.



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 seeks to enhance employment opportunities and receive Department of Veterans Affairs ( VA ) benefits.
2.       The Applicant contends his drug use was due to prescription medications not e ffectively treating his Post-Traumatic Stress Disorder ( PTSD ) .
3. The Applicant contends he has paid for his mistakes long enough .

Decision

Date: 20 1 4 0 617            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 a deployment to Iraq in support of Operation IRAQI FREEDOM from August 2006 to March 2007.

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 warnings and for o f the Uniform Code of Military Justice (UCMJ): Article ( Wrongful use, possession, etc. of controlled substances , marijuana ). 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 22 July 2005 . 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 right s to submit a written statement and request an administrative board .

: (Nondecisional) The Applicant seeks to enhance employment opportunities and receive VA benefits. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or service benefits. Futhermore, 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 his drug use was due to prescription medications not effectively treating his PTSD. The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service. The Applicant stated that the drugs he was prescribed t o combat mental stress were causing him to feel zombielike and not like himself. In an attempt to lower his stress, he u sed marijuana one time and later had a positive urinalysis from the one time use. A review of the records shows the Applicant had been seen an d treated by Clinical Psycholog y and Psychiatry at the Deployment Health Services office, that the Applicant was not den ied prescribed medications to treat his depression , and he was advised of potential side effects of prescribed medication s . The record goes further to show that the Applicant ’ s feedback to drug interaction was taken into account in the determination of continuing use or prescribing different medications. W hen filling out a patient discharge form on 10 October 2008 for medications currently prescribed, the record shows that the Applicant wanted to continue taking Duradin (Midrin EQ), Amitriptyline (Elavil), Effexor, Quetiapine (Seroquel

XR), Hexachlorophene cleanser, Ibuprofen, Sulfamethox/Trimeth, and Ascorbic Acid. The only drug that the Applicant was being pre scribed at that time that he did not plan on taking was Cetylpyridinium, a throat lozen ge. This was completed several months after the Applicant ’ s wrongful ingestion of marijuana. There were neuropsychological evaluations conducted on the Applicant in November and December 2008 , which provides evidence that there was constant monitoring of the Applicant’s prescription medications . These evaluations also document a history of drug abuse. The record also shows that the Applicant was still tak ing Seroquel, Effexor, Amitriptyline, and Midrin t wo weeks prior to his separation .

During the separation proceedings, the Applicant exercised his right to consult with counsel but waived his rights to request a hearing before an Administrative Separation Board and submit a written rebuttal to the separation. 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. The Applicant submitted no evidence to support his contention . The NDRB found that a preponderance of the evidence reviewed supports the conclusion that the Applicant committed a serious offense, that separation from the Naval Service was appropriate, and that an Under Other Than Honorable Conditions discharge was warranted. After a complete review of the records and after listening to the Applicant’s testimony, the NDRB determined PTSD did not mitigate his misconduct, and his discharge was proper and equitable. Relief denied.

: (Decisional) ( ) . The Applicant contends he has paid for his mistakes long enough. 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. Be sides the Applicant’s statements during his personal hearing and a resume of his work history , 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 is not eligible for further reviews by the NDRB. The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm . 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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