ex-, USMC

Current Discharge and Applicant’s Request

Applicant’s Request:     Characterization change to:
         Narrative Reason change to:

Summary of Service

Prior Service:
Inactive:        USMCR (DEP)      20050429 - 20050925     Active: 

Pre-Service Drug Waiver:

Period of Service Under Review:
Date of Current Enlistment: 20050926    Age at Enlistment:
Period of Enlistment: Years Months
Date of Discharge: 20090924     Highest Rank:
Length of Service: Year(s) Month(s) 29 Day(s)
Education Level:        AFQT: 34
MOS: 1341
Proficiency/Conduct Marks (# of occasions): /

Awards and Decorations (per DD 214):     Rifle (2) (WITH 1 BRONZE SERVICE STAR)

Periods of UA/CONF:

NJP:

- 20080717:      Article (Wrongful use, possession, etc. of controlled substances; THC 44 ng/mL)
         Awarded: Suspended: 15 DAYS

SCM:     SPCM:    CC:      Retention Warning Counseling:

NDRB Documentary Review Conducted (date):        20130418
NDRB Documentary Review Docket Number:   MD13-00543
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.

Administrative Corrections to the Applicant’s DD 214

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

         “”

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:                  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 that his honorable and faithful combat service as evidenced by his awards and decorations warrants consideration for an upgrade.
2.       The Applicant contends his post-traumatic stress disorder (PTSD) and traumatic brain injury (TBI) were a mitigating factors in his misconduct.
3.       The Applicant contends that the medication regimen he was provided to treat his PTSD and TBI were not adequate to control his symptoms which was a mitigating factor to his further misconduct.
4.       The Applicant contends that he lost his capability to serve following his combat injuries and auto accident.
5.       The Applicant contends his discharge within one day of the end of his obligated service warrants consideration for an upgrade.

Decision


Date: 20150310           Location: Washington D.C.        Representation:

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 stated that he was diagnosed with PTSD related to his combat service in Iraq. The Applicant’s service record documents completion of a deployment in the Al-Anbar Province of Iraq from August 2006 to March 2007, 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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Board 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 for of the Uniform Code of Military Justice (UCMJ): Article (Wrongful use, possession, etc. of controlled substances, ). The Applicant a pre-service drug waiver for using marijuana prior to entering the Marine Corps, acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 19 April 2005. Based on the Article 112a violation, processing for administrative separation is mandatory. The Applicant was processed for administrative separation UNDER OTHER THAN HONORABLE CONDITIONS; however, his discharge was suspended for a period of 12 months. The Applicant was then diagnosed by Navy physicians with PTSD and TBI directly related to combat in support of Operation IRAQI FREEDOM. The Applicant was the subject of a Physical Evaluation Board (PEB) and was found unfit for duty. However, he tested positive for marijuana a second time on a random urinalysis before he executed either a medical or completion of required active service separation. His command then took steps to vacate his suspended separation and processed the Applicant for administrative separation with an UNDER OTHER THAN HONORABLE CONDITIONS characterization. When notified of administrative separation processing using the administrative board procedure, the Applicant waived his rights to consult with a qualified counsel, submit a written statement, and request an administrative board. The Separation Authority subsequently discharged the Applicant UNDER OTHER THAN HONORABLE conditions.

: (Decisional) () . The Applicant contends that his honorable and faithful combat service as evidenced by his awards and decorations warrants consideration for an upgrade. Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the to maintain proper order and discipline. Violation of Article 112a 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. The Applicant was found guilty of violation of Article 112a. However, his command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge and suspended that discharge for one year on the condition that the Applicant would commit no further misconduct. On 2 September 2009 the Applicant again tested positive for marijuana in violation of the consideration for his service and injuries given by the vacated 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.

: (Decisional) () . The Applicant contends his post-traumatic stress disorder (PTSD) and traumatic brain injury (TBI) were mitigating factors in his misconduct. The NDRB determined the Applicant’s command mitigated his drug-abuse misconduct by suspending his initial separation for one year as a result of his in-service diagnoses of PTSD and TBI. It was the Applicant’s personal responsibility to abstain from further misconduct, particularly while receiving treatment for his PTSD and TBI. The Applicant was provided comprehensive treatments and evaluation for his conditions and was properly and equitably warned that a violation of the terms of his suspended separation would result in a vacation of the suspension and immediate separation from the Marine Corps. After reviewing the facts and circumstances unique to this case, the NDRB determined no further mitigation or relief was warranted. Relief denied.

: (Decisional) () . The Applicant contends that the medication regimen he was provided to treat his PTSD and TBI were not adequate to control his symptoms which was a mitigating factor to his further misconduct. The records reviewed for this case indicate that the Applicant received a comprehensive medical evaluation and treatment for both his combat related injuries and his substance abuse after testing positive on his first urinalysis. Moreover, the Applicant did not provide any evidence that the only effective treatment for his symptoms could only be obtained by the use of illegal drugs and not his prescribed treatments, including legal prescription drugs and therapy sessions. The NDRB found no evidence in the record that his medical providers were not fully engaged with him in providing treatment for his injuries and relief to his symptoms. Furthermore, the Applicant’s record demonstrates he sought help for any combat stress-related symptoms after his first positive urinalysis and continued to receive treatment until his second positive urinalysis several months later. Lacking any evidence of ineffective treatment, the NDRB is unable to establish this contention as a basis for mitigation or consideration as an extenuating circumstance. Relief denied.

4: (Decisional) () . The Applicant contends that he lost his capability to serve following his combat injuries and auto accident. The NDRB notes that while it is not bound by VA decisions, nor do VA decisions have any bearing on the decisions of the NDRB, the Applicant may wish to petition the VA for the additional post-service assistance he may be seeking. The U.S. Department of Veterans Affairs (VA) has announced special access to combat veterans discharged under other than dishonorable conditions. The VA determines the eligibility for enrollment independent of the Applicant’s characterization of service as determined by the Marine Corps. Effective 28 January 2008, combat veterans discharged from active duty on or after 28 January 2003 are eligible for combat-veteran enhanced eligibility and enrollment placement into Priority Group 6 (unless eligible for higher enrollment Priority Group placement) for five years after discharge. The Applicant, as a combat veteran, is encouraged to contact the VA for more information at 1-877-222-8387 or http://www4.va.gov/healtheligibility/Library/pubs/CombatVet/CombatVet.pdf .

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 does not consider the circumstances surrounding the Applicant’s stated condition or diagnosis to be of sufficient nature to excuse the Applicant’s misconduct. Department of Defense regulations provide that disciplinary separations supersede disability separations. 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 UNDER OTHER THAN HONORABLE CONDITIONS discharge is authorized, the medical board report is filed in the member’s terminated health record. Though the Applicant may feel that his PTSD and TBI were the underlying causes of his misconduct, the record reflects willful misconduct that demonstrated he was unfit for further service. The evidence of record did not show that his PTSD and TBI were sufficient mitigating factors to excuse the Applicant’s conduct or accountability concerning his actions. After an exhaustive review, the NDRB determined that the Applicant’s PTSD and TBI did not mitigate his misconduct. Urinalysis confirmation of marijuana usage on two occasions, which resulted in an administrative board and a suspended separation after his first positive urinalysis, represents conscious decisions to violate the tenants of honorable and faithful service. Relief denied.

5: (Decisional) () . The Applicant contends his discharge within one day of the end of his obligated service warrants consideration for an upgrade. The Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation. The characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation. Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition. Based on the Applicant’s record of service, the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service, and the awarded characterization of service was 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 remain UNDER OTHER THAN HONORABLE CONDITIONS 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