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USMC | DRB | 2014_Marine | MD1400214
Original file (MD1400214.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20131115
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)       20070514 - 20070715     Active:   2007071 6 - 20100914

Period of Service Under Review:
Date of Current Enlistment: 2010091 5     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20120424      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 10 D a y ( s )
Education Level:        AFQT: 36
MOS: 0331
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

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

Periods of Time Lost per DD 214 : 20120130 - 20120201, 3 days

NJP:     SCM:     SPCM:    CC:

Retention Warning Counseling :
- 20120114 :       For your diagnoses of substance abuse psychosis and substance dependence.

Administrative Corrections to the Applicant’s DD 214

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

          “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 070716 UNTIL 100914 ”
         “ 2007 07 16 ”
         “ 04 09 06 ”
        
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 :        


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 his command told him an upgrade was almost guaranteed .
3.       The Applicant contends he is innocent of wrongfully using S pice.
4.       The Applicant contends Post-Traumatic Stress Disorder (PTSD) and Traumatic Brain Injury (TBI) led to his psychosis.
Decision

Date: 20 1 4 021 2            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 from April to October 20 10 , conducting combat operations 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 in his current enlistment included 6105 counseling warning . In addition, the Applicant’s DD Form 293 statement described that he had accepted nonjudicial punishment (NJP) and implied it was for the wrongful use of S pice. On 30 November 2011, the Applicant was notified for administrative separation proceedings for Misconduct (Drug Abuse) based on his admission to using a designer drug to induce intoxication, excitement, or stupefaction of the central nervous system. His commanding officer notified the Applicant that he was going to recommend that the Applicant receive an Under Other Than Honorable Conditions characterization of service. However, after the Applicant’s diagnoses of substance abuse psychosis , substance dependence (Spice), and schizoaffective disorder, his command renotified him of administrative separation proceedings on 17 February 2012 for Condition, Not a Disability. His commanding officer notified the Applicant that he was going to recommend that the Applicant receive a General (Under Honorable Conditions) characterization of service. When notified of a dministrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel and submit a written statement .

: (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.

: (Nondecisional) The Applicant contends his command told him an upgrade was almost guaranteed. T here 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. The NDRB reviews each case to determine the propriety and equity of the discharge, however, it does not grant upgrades automatically based upon time since discharge or service in combat.

: (Decisional) ( ) . The Applicant contends he is innocent of wrongfully using S pice. The Applicant further contends he was drug tested on numerous occasions and never tested positive . The Applicant provided a letter from a professor of psychiatry at the University of Arkansas , which stated, “that there was no urine test to prove [he used spice].” The NDRB presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. Although the Applicant’s record of


service did not annotate an NJP for the wrongful use of S pice, his record clearly shows that he admitted to wrongfully using S pice , which is considered a violation of the Marine Corps drug policy and warrants mandatory processing for administrative separation. In addition, the Applicant’s medical record shows that he admitted to not only using S pice while in the Marine Corps but also to wrongfully using cocaine, methamphetamines, LSD, inhalants, MDMA, and Robitussin DM. Further, his medical record dated 16 December 2011 described that the Applicant did test positive on a urinalysis for S pice. Relief denied.

4 : (Decisional) ( ) . The Applicant contends PTSD and TBI led to his psychosis. T he Applicant provided a letter from a professor of psychiatry at the University of Arkansas which stated, “ I t is highly unlikely that his persisting psychosis is related to drug use” and the professor suggest ed that “the final medical diagnosis was incorrect and that the original diagnosis of schizophrenia was correct.” The NDRB presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s medical and service record s clearly show the Applicant was diagnosed by competent medical authority with substance abuse psychosis , substance dependence ( S pice) , and schizoaffective disorder . Even if schizophrenia was present, his drug abuse warranted separation from the Marine Corps. T he evidence of record , to include the documents provided by the Applicant , did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. The Separati on Authority was well aware of the Applicant’s PTSD and TBI and determined that the Applicant’s service had been honest and faithful, but significant negative aspects of his conduct or performance outweighed his positive aspects. The NDRB concluded that the Applicant is extremely fortunate that his command and Separation Authority chose to separate the Applicant based on his C ondition , N ot a D isability since he warranted an Under Other Than Honorable Conditions separation for Misconduct (Drug Abuse). After an exhaustive review, the NDRB determined PTSD and TBI did not mitigate the Applicant’s misconduct , and mitigation beyond what his command already provided with a General discharge 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.

Pertinent Regulation/Law

 A. Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 and Present, paragraph 6203, CONVENIENCE OF THE GOVERNMENT.

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 .


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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