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USMC | DRB | 2014_Marine | MD1400993
Original file (MD1400993.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20140408
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)       20080206 - 20080224     Active:  

Pre-Service Drug Waiver:

Period of Service Under Review:
Date of Current Enlistment: 20080225     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20110415      H ighest Rank:
Length of Service : Y ea rs M on th 21 D a ys
Education Level:        AFQT: 34
MOS: 6112
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

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

Periods of UA / CONF :

NJP:     SPCM:    CC:

SCM:
- 20101123 :       Art icle (Failure to obey order or regulation , 3 specifications )
         Specification 1: Violate a lawful general order by wrongfully possessing S pice
         Specification 2: Violate a lawful general order by wrongfully using S pice
         Specification 3: Violate a lawful general order by wrongfully possessing drug abuse paraphernalia, to wit: a smoking pipe
          Sentence :

Retention Warning Counseling :

- 20100401 :       For speeding in a government vehicle while driving 76 mph on I -8 East of Yuma, AZ , resulting in possible loss of the vehicle for 6 mo nths

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 an upgrade to qualify for educational benefits.
2.       The Applicant contends he was not afforded the opportunity for drug rehabilitation.
3.       The Applicant contends he was given bad legal advice to submit to a S ummary C ourt- M artial.
4.       The Applicant contends derogatory reports of another Marine with a similar name were entered i nto his official service record and could have affected the outcome of his S ummary C ourt- M artial.
5.       The Applicant contends his characterization of service was too harsh for the offense committed.
6.       The Applicant contends P ost-Traumatic Stress Disorder (P TSD ) may have been a contributing factor in his misconduct.

Decision

 Date: 20 1 4 0731           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 Iraq, conducting combat support operations in support of Operation IRAQI 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 sta ndards of equity and propriety. The Applicant’s record of service included 6105 counseling warning and summary court-martial (SCM) for of the UCMJ: Article (Failure to obey order or regulation, 3 specifications). The Applicant acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 5 February 2008 . Based on violation s of the Marine Corps 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 submit a written statement but waived his right to request an administrative board .

: (Nondecisional) The Applicant seeks an upgrade to qualify for educational benefits. 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.

: (Decisional) ( ) . The Applicant contends he was not afforded the opportunity for drug rehabilitation. All servicemembers separated for drug abuse are screened for drug dependency and provided the option of treatment prior to separation. The intent of this treatment is for the benefit of the Applicant after discharge, not to rehabilitate the Applicant for continued service. Per the Commanding Officer’s letter of 21 December 2010, the Applicant was screened for substance abuse on 17 Decembe r 2010 in relation to the drug incident and appropriate treatment was provided. The NDRB determined the Applicant was properly separated in accordance with applicable directives. Relief denied.






: (Decisional) ( ) . The Applicant contends he was given bad legal advice to submit to a S ummary C ourt- M artial. The Applicant’s record indicates he pled guilty to three specification s of Article 92 to avoid charges being referred to a Special Court-Martial, which could have resulted in a punitive Bad Conduct Discharge . The record does not contain, nor did the Applicant provide, any evidence that indicates the Applicant’s legal counsel acted inappropriately or was incompetent. Relief denied.

4 : (Decisional) ( ) . The Applicant contends derogatory reports of another Marine with a similar name were entered into his official service record and could have affected the outcome of his S ummary C ourt- M artial. The NDRB did discover that documents of another Marine were erroneously entered into the Applicant’s official military personnel file. Ho wever, these erroneous entries had absolutely no bearing on the Applicant’s S ummary C ourt- M artial and subsequent administrative separation. The Applicant was found guilty of violating Article 92 for wrongfully using and possessing Spice . Violation of the Marine Corps Drug Policy 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. 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.

5 : (Decisional) ( ) . The Applicant contends his characterization of service was too harsh for the offense committed. 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. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of disc ipline in the United States Marine Corps . A preponderance of the evidence reviewed supports the conclusion that the Applicant committed a serious offense, that separation from the Naval Serv ice was appropriate, and that an Under Other Than Honorable Conditions characterization of service was warranted. Relief denied.
6 : (Decisional) ( ) . The Applicant contends PTSD may have been a contributing factor in his misconduct. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. The NDRB found no medical diagnosis in the record to support the Applicant ’ s claim nor did the Applicant produce any medical diagnosis by competent medical authority to support his claim. Documentation included in the Applicant’s administrative separation package indicates the Applicant submitted a PTSD checklist and did not meet the requirements for PTSD counseling. While the Applicant may feel that PTSD was an underlying cause of his misconduct, the record clearly reflects his willful misconduct and 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 records and documentation submitted by the Applicant, the NDRB determined PTSD did not mitigate his misconduct , and there is no basis for relief on this issue. 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. 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 .


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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