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USMC | DRB | 2014_Marine | MD1401139
Original file (MD1401139.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20140520
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)       20011221 - 20020127     Active:  

Pre-Service Drug Waiver:

Period of Service Under Review:
Date of Current Enlistment: 20020128     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070127      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 00 D a y ( s )
Education Level:        AFQT: 54
MOS: 5711
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations (per DD 214):      Rifle

Periods of UA NONE / CONF : 20040917 - 20040921, 5 days ; 20041015 - 20041115, 31 days

NJP:
- 20040123 :       Article (Wrongful use, possession, etc. of controlled substances , 2 specifications )
         Specification 1: On or about 20031027, wrongfully use amphetamine
         Specification 2: On or about 20031027, wrongfully use methamphetamine
         Awarded: Suspended:

SCM:     CC:               Retention Warning Counseling :

SPCM:

- 20041015 :       Article (Wrongful use, possession, etc. of controlled substances , 2 specifications )
         Specification 1: On or about 20040723, wrongfully use marijuana
         Specification 2: On or about 20040820, wrongfully use methamphetamine
         Sentence : 60 days

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 contends that if he was discharged sooner for earlier misconduct , he would not have gotten into trouble that led to his Special Court-Martial.
2.       The Applicant contends Post-Traumatic Stress Disorder ( PTSD ) mitigates his misconduct.
Decision

Date: 20140807           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 Kuwait and Iraq from January to June 2003, conducting combat service 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. With respect to a discharge adjudged by a court-martial case, 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. In response to the Applicant’s clemency request, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The Applicant’s record of service included for o f the Uniform Code of Military Justice (UCMJ): Article 112a (Wrongful use, possession, etc. of controlled substances, 2 specifications : Wrongfully use amphetamine and Wrongfully use methamphetamine) and for of the UCMJ: Article 112a (Wrongful use, possession, etc. of controlled substances , 2 specifications : W rongfully use marijuana and W rongfully use methamphetamine ). The Applicant also had a pre-service drug waiver for using marijuana 25 times prior to entering the Marine Corps, and acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 13 December 2001. The Applicant’s service record documents a punitive conviction and punishment, as adjudged by a Special Court-Martial, on 15 October 2004 . A qualified legal defense counsel represented the Applicant throughout the trial by Special Court-Martial process. Given the facts of the case, the Special Court-Martial awarded the Applicant a Bad Conduct Discharge , reduction to E-1, and confinement for a period of 6 0 days. The case was submitted for review to the U.S. Navy-Marine Corps Court of Criminal Appeals without assignments of error; it was reviewed and the findings were affirmed on 20 April 200 5 . Subsequently, the Navy Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed.

: (Decisional) ( ) . The Applicant contends that if he was discharged sooner for earlier misconduct, he would not have gotten into trouble that led to his Special Court-Martial. Although the Applicant may have been pending an administrative discharge for his previous misconduct, it does not absolve him of his responsibility to abide by the UCMJ while still on active duty. T he NDRB determined this contention does not form a basis to warrant clemency . Clemency denied.

: (Decisional) ( ) . The Applicant contends PTSD mitigates his misconduct. The NDRB requested all records of medical treatment, both active duty and post-service, from the Department of Veterans Affairs ( VA ) . The records received from the VA failed to document any request for evaluation, any diagnosis, or any findings of PTSD. Moreover, the Applicant did not provide any evidence of a diagnosis of PTSD from any other private mental health treatment provider to document his claim. However, the record of trial shows the Applicant’s wife testified that the Applicant

was dealing with issues from his Iraq deployment. The record of trial also shows the Military Judge asked several questions regarding the Applicant’s Iraq service; therefore, the NDRB presume s the Applicant’s Iraq deployment and possible stressors were given proper consideration at his Special Court-Martial . 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. R epeated violations of the UCMJ and the Marine Corps drug policy were all conscious decisions to violate the ten ets of honorable and faithful service. T he NDRB determined PTSD did not mitigate the Applicant’s misconduct. Clemency denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, the record of trial by Special Court-Martial, and discharge process, the Board found that clemency was not warranted. 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. Paragraph 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURT-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications.


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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