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USMC | DRB | 2014_Marine | MD1400754
Original file (MD1400754.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20140429
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)       20030326 - 20030518     Active:  

Pre-Service Drug Waiver:

Period of Service Under Review:
 Date of Current Enlistment: 20030519     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070130      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 12 D a y ( s )
Education Level:        AFQT: 80
MOS: 2111
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

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

Period of UA :

Lost time per DD214: 20061208 - 20061212, 5 days

NJP:

- 20040629 :      Article (Failure to obey order or regulation , 3 specifications )
         Specification 1: On or about 20040618, dereliction of duties by riding with and allowing another Marine to operate a POV while under the influence of alcohol
         Specification 2: On or about 20040625, went to the E-Club and consumed alcohol
         Specification 3: On or about 20040626, having a female in his room along with four bottles of MD 20/20 & 2 bottles of Heineken beer
         Awarded: Suspended:

SCM:

- 200 6 1009 :      Article (Failure to obey order or regulation)
          Article (Wrongful use, possession, etc., of controlled substance)
         Sentence: (20061009-20061101, 2 4 days)

SPCM:    CC:






Retention Warning Counseling:

- 20040629 :      On or about 20040618 you violated Article 92 on three accounts, specifically , dereliction of duty by riding and allowing a fellow Marine to operate his POV while under the influence of an alcoholic beverage with a BAC of 0 . 1 2. You are also being counseled for failure to obey a lawful order by the Company First Sergeant to remain in the barrack s for the weekend of 20040625 and having knowledge of this order you went to the Enlisted Club and consumed alcohol. Finally, you are being counseled for violating the base order or regulation on 20040625 and 20040626 by entertaining a female in your room along with four bottles of MD 20/20 and two bottles of Heineken beer.

- 20061116 :      For violations of Article s 92 and 112a: positive testing via voluntary urinalysis of illegal drug use and drinking alcoholic beverage while in a combat zone violating CENTCOM General Order 1A.

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 was not given the opportunity to be evaluated for Post-Traumatic Stress Disorder ( PTSD ) prior to his second combat deployment, leading him to self-medicate with a controlled substance.

Decision

Date: 20 1 4 0 822            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 Fallujah , Iraq from 24 October 2004 to 25 January 2005 and Al Asad , Iraq from 26 January 2005 to 05 Fe bruary 2 00 5 in sup port of Operation IRAQI FREEDOM and a deployment to Afghanistan in 2006 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 B oard 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, for o f the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey an order or regulation , 3 specifications) , and for of the UCMJ: Article 92 (Failure to obey an order or regulation, 1 specification) and Article 112a (Wrongful use, possession, etc., of controlled substance, 1 specification) . The Applicant did not have a pre-service drug waiver prior to entering the Marine Corps, but he acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 21 March 2003 . Based on the Article 112a violation , processing for administrative separation is mandatory. When notified of a dministrative separation processing using the procedure, the Applicant rights to consult with a qualified counsel, submit a written statement, and request an administrative board.

: (Decisional) ( ) . The Applicant contends he was not given the opportunity to be evaluated for PTSD prior to his second combat deployment, leading him to self-medicate with a controlled substance. When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline. However, the NDRB presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. In reviewing the Applicant’s medical records, the NDRB found that he was given the opportunity to be evaluated for PTSD prior to his second combat deployment. The record clearly shows the Applicant was given a pre-deployment health assessment for an upcoming deployment to Afghanistan on 11 July 2005 and a post-deployment health assessment for his completed deployment to Iraq on 11 September 2005. In both of these health assessments, the Applicant did not indicate any mental health issues and rated his overall health as very good. The first mention of PTSD in the Applicant ’s record appeared on 14 July 2006 , over two months after his drug misconduct in Afghanistan . Furthermore , the Applicant submit ted a stipulation of fact s for his S ummary C ourt -M artial on 06 October 2006 in which he clearly admit ted to knowingly and willingly consuming alcohol and marijuana on 01 April 2006 while on a combat deployment to Afghanistan, with no mitigation of mental health issues given. The Applicant subsequently waived another opportunity to submit matters of mitigation at his administrative separation board . After a complete review of the record and after listening to his testimony, the NDRB determined 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 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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