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USMC | DRB | 2014_Marine | MD1401401

Original file (MD1401401.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20140701

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)       20060116 - 20020624     Active:

Pre-Service Drug Waiver:

Period of Service Under Review:
Date of Current Enlistment: 20020625     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20060127      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 03 D a y ( s )
Education Level:        AFQT: 47
MOS: 1833
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

NJP:

- 20031219 :      Article (Wrongful use, possession, etc. of controlled substances , MDMA )
         Awarded: (2 months) Suspended: (1 month) Vacated 20040108

- 20040505 :       Article 86 (Absent without leave, 20040228)
         Article (Failure to obey order or regulation) 2 specifications
         Specification 1: 20040227 , drinking under the age of 21
         Specification 2: 20040227, left the bounds of his restriction
         Awarded: Suspended:
SCM: 2

- 20040224 :       Art icle 92 (Failure to obey order or regulation, failed to check in for restriction at the designated time.)
         Article 134 (General Order) 2 specifications
         Specification 1: 20040102, Broke the prohibition of going into the 21 Area Exchange unless accompanied by a noncommissioned officer for the purchase of health and comfort items.
         Specification 2: 20031231, Broke the prohibition of going into the 21 Area Exchange unless accompanied by a noncommissioned officer for the purchase of health and comfort items.
         Sentence :
         CA action: Sentence approved and ordered executed but the execution of the part of the sentence extending to restriction in excess of 55 days is suspended for a period of 12 months, at which time, unless the suspension is sooner vacated, will be remitted without further action.

- 20050506 :       Art icle (Wrongful use, possession, etc., of controlled substances) 2 specifications
         Specification 1: 20050114, wrongfully used 3,4 methylenedioxy methampheta m ine
         Specification 2: 20050114, wrongfully used methamphetamine
         Sentence : (20050509 - 20050529, 24 days)
         CA action: The sentence is approved and ordered executed without modification. Place of confinement will be Camp Pendleton Base Brig for a period of 30 days.

SPCM:

CIVIL ARREST: 1

- 20040228 :       Charges: Misdemeanor DUI, Driving without a license, presenting false license, driving with alcohol in the car under the age of 21, substandard performance in field sobriety test, preliminary alcohol screening results, .080% and.077%.

CC:

Retention Warning Counseling : 1

- 20050504 :       For violation of Article 86, Absent without leave at 0700 on 20050428

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 :

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.       Admits to first time drug use, but vehemently denies the second instance, claiming that the test was tampered with by lab personnel.
2.       The Applicant contends that severe PTSD and depression were mitigating factors in his misconduct.

Decision

Date: 20 1 4 1001          Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall .

Discussion

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 complete d a thorough review of the circumstances that led to the Applicant’s 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 warnings, for o f the Uniform Code of Military Justice (UCMJ): Article ( Wrongful use , possession, etc. of controlled substances, ), Article ( Absent without leave , ), and Article ( Failure to obey order or regulation , ); and for of the UCMJ: Article ( Failure to obey order or regulation , ) , Article (General Article, ), and Article (Wrongful use, possession, etc., of controlled substances, ). The Applicant additionally had a civilian arrest for misdemeanor DUI, driving without a license, presenting a false license, and substandard performance in a field sobriety test. The Applicant a pre-service drug waiver for drug use prior to entering the Marine Corps. Although the NDRB did not find evidence that the Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs before entry into the Marine Corps, the applicant would have been made aware during his first drug offense and subsequent NJP. Based on the Article 112a violation , processing for administ rative separation is mandatory. The NDRB did not have the Applicant’s complete administrative separation package to determine whether or not the Applicant waived rights to consult with a qualified coun sel, or submit a written statement . However, per the Applicants DD Form 214, the Separation Code HKK indicates the Applicant waived his right to an administrative board.

The Applicant stated that he was diagnosed with PTSD related to his combat service in Iraq. The Applicant’s service record documents completion of two deployments in support of Operation IRAQI FREEDOM in January-July 2003 and February-September 2004. A s 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.

: (Decisional) ( ) . The Applicant admits to first time drug use, but vehemently denies the second instance, claiming that the test was tampered with by lab personnel. 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. There is no evidence in the record, nor has the Applicant produced any evidence, that the test had been tampered with . Furthermore, this was the second instance in which the Applicant tested positive for Ecstasy metabolites . Violation of Article 112a 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. The command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. Considering the multiple violations of the UCMJ, including two instances of a failed urinalysis, t he NDRB determined an upgrade would be inappropriate. Relief denied

: (Decisional) ( ) . The Applicant contends that his problems were attributed to Post Traumatic Stress Disorder. The Applicant bea rs the burden of overcoming the presumption of regularity through the presentation of substantial and credible evidence to support his issue. The NDRB requested and screened the Applicant’ s medical record. When screened by competent medical authority, it was determined that the misconduct was not attributable to PTSD. While he may feel that this was the 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. Relief d enied

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.

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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USMC | DRB | 2014_Marine | MD1401401

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