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)      20080130 - 20080305     Active: 

Period of Service Under Review:
Date of Current Enlistment: 20080306    Age at Enlistment:
Period of Enlistment: Years Months
Date of Discharge: 20120302     Highest Rank:
Length of Service: Year(s) Month(s) 26 Day(s)
Education Level:        AFQT: 36
MOS: 0311
Proficiency/Conduct Marks (# of occasions): () / ()   Fitness Reports:

Awards and Decorations (per DD 214):     Rifle ACM

Periods of UA:

NJP:

- 20080628:      Article 113 (Misbehavior of sentinel)
         Awarded: Suspended:

- 20081007:      Article (Failure to obey order or regulation)
         Article (General article)
         Awarded: Suspended:

- 20110818:      Article (Wrongful use, possession, etc., of controlled substances; 2 specifications of positive urinalysis screenings for marijuana)
         Awarded: Suspended:

- 20111021:      Article (Failure to obey order or regulation)
         Awarded: Suspended:

SCM:

- 20110709:      Article (Wrongful use, possession, etc., of controlled substances, MARIJUANA)
         Sentence: (20110709-20110801, 24 days)

SPCM:

CC:




Retention Warning Counseling:

- 20080619:      For being assigned to the medical readiness PLT in connection with (stress fracture).

- 20080626:      For Company NJP on 20080626 for violation of Article 113 (while on firewatch, sleeping on post).

- 20081208:      For violation of Article 92, specifically on 20081003, by consuming alcohol while under the age of 21.

- 20110207:      For the following deficiencies: drug abuse; specifically, on 20110104 your urinalysis sample was returned positive for THC.

- 20110622:      For the following deficiencies: specifically, on 20110622, you were absent from a Company accountability formation.

- 20110711:      For the following judicial or administrative action: Administrative Separation under paragraph 6210.5 of MCO P1900.16F Drug Abuse.

- 20110818:      For the following misconduct, specifically, my recent NJP for violating Article 112a.

- 20111028:      For the following deficiencies: violation of Article 92. Specifically, you had a gram of Spice in your barracks room.

- 20111115:      For violation of Article 134: restriction breaking.

Administrative Corrections to the Applicant’s DD 214

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

         “03 11 26”
         “MISCONDUCT”

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 discharge is inequitable because a diagnosed condition of combat related post-traumatic stress disorder (PTSD) and traumatic brain injury (TBI) caused the Applicant’s misconduct and drug use.

Decision


Date: 20141230           Location: Washington D.C.        Representation:

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 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 nine 6105 counseling warnings, for of the Uniform Code of Military Justice (UCMJ): Article 113 (Misbehavior of sentinel), Article 92 (Failure to obey order or regulation; 1 specification of consuming alcohol under age 21, and 1 specification of possession of Spice and possession of drug paraphernalia), and Article 112a (Wrongful use, possession, etc., of controlled substances; 2 specifications of marijuana use); and for of the UCMJ: Article 112a (Wrongful use, possession, etc., of controlled substances; marijuana use). The Applicant did not have a pre-service drug waiver prior to entering the Marine Corps, and acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 25 January 2008. Based on the offense(s) committed by the Applicant, command administratively processed for separation. Based on the Article 112a violation, processing for administrative separation is mandatory. When notified of administrative separation processing using the procedure, the Applicant right to consult with a qualified counsel, but waived his rights to submit a written statement, and request an administrative board.

The Applicant stated that he was diagnosed with PTSD related to his combat service in Afghanistan. The Applicant’s service record documents completion of a deployment in the Helmand Province of Afghanistan, conducting combat operations in support of Operation ENDURING FREEDOM (dates of deployment NFIR). As a result of the Applicant’s claim of PTSD or 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 contends that his discharge is inequitable because a diagnosed condition of combat related post-traumatic stress disorder (PTSD) and traumatic brain injury (TBI) caused the Applicant’s misconduct and drug use. The Applicant’s service record shows that he was found guilty of marijuana use at SCM in July 2011 for which he was confined for 24 days. The Applicant had used marijuana while at home during Christmas leave from December 2010 until January 2011. The Applicant tested positive for marijuana again in July while confined; and he tested positive for marijuana a third time in August 2011. In October 2011, the Applicant was also found guilty at NJP for violation of orders for possession of a gram of Spice (a controlled substance), and possession of drug paraphernalia in his barracks room. The Applicant was diagnosed by a military Staff Psychiatrist with PTSD related to the Applicant’s combat experiences, and a history of TBI. The Applicant was also diagnosed with alcohol and nicotine dependence, and cannabis abuse, with a history of attention deficit hyperactive disorder (ADHD). Treatment for alcohol dependence and cannabis abuse was provided by residential Substance Abuse Rehabilitation Program (SARP), and the Applicant received PTSD and TBI treatment from August until October 2011 prior to his discharge from the Marine Corps. Nothing in the Applicant’s record indicates that PTSD/TBI were mitigating factors in the Applicant’s misconduct or drug abuse in violation of Marine Corps orders and the UCMJ. The Applicant’s diagnosis and treatment for PTSD/TBI was taken into account by the Separation Authority during the administrative separation process, and the Applicant waived his right to an administrative board were he could have addressed his issues of PTSD/TBI at the time. After careful examination of the Applicant’s record, and issues, the NDRB determined that the evidence provided does not support PTSD/TBI mitigation in this case; therefore, the discharge was determined to be proper and equitable as issued. 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 MISCONDUCT.

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