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)      20030125 - 20031207     Active:  20031208 – 20071230 HON

Pre-Service Drug Waiver:

Period of Service Under Review:
Date of Current Enlistment: 20071231    Age at Enlistment:
Period of Enlistment: Years Months
Date of Discharge: 20120123     Highest Rank:
Length of Service: Year(s) Month(s) 23 Day(s)
Education Level:        AFQT: 54
MOS: 5811
Proficiency/Conduct Marks (# of occasions): () / ()   Fitness Reports:

Awards and Decorations (per DD 214):     Rifle Pistol (2 ^ND Awd) (Iraq) (2 ^nd Awd) (w/1 Bronze Service Star) ACM (w/1 Bronze Service Star) LoA MM

Period of UA:

NJP:

- 20100414:      Article
         Awarded: Suspended:

SCM:

- 20110830:      Article 92 (Failure to obey order or regulation) 2 specifications
         Specification 1: Did on or about 20110227 wrongfully smoke Spice or a variant thereof
         Specification 2: Did on an unknown date wrongfully visit Discount Tobacco, an off limit establishment
         Sentence: (20110830-20110922, 24 days)

SPCM:

CC:

Retention Warning Counseling:

- 20100506:      For violation of Article 91, for being disrespectful in language to SSgt A_ by yelling belligerently and loud, and behaving very confrontational when stating to him: Marines are being f__ over,” or words to that effect


Administrative Corrections to the Applicant’s DD 214

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

         “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 031209 UNTIL 071230”
        
The NDRB will recommend to the Commandant of the Marine Corps 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:        

Types of Witnesses Who Testified

         Expert:           Character:      

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 his in-service conduct to include combat deployments warrants an upgrade.
2.       The Applicant contends his difficulty adjusting after reenlisting in the Military Police warrants an upgrade.
3.       The Applicant contends the lack of the severity of his misconduct warrants an upgrade.
4.       The Applicant contends MARFORCOM Order 5355.1 which describes prohibited substances is too vague to inform an ordinary Marine what spice is.
5.       The Applicant contends PTSD mitigates his misconduct.
6. The Applicant contends his post-service conduct warrants an upgrade.



Decision


Date: 20150608           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 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. The Applicant stated that his PTSD is related to his combat service in Afghanistan and Iraq. The Applicant’s service record documents completion of a deployment to Afghanistan from November 2004 to June 2005 and a deployment to Iraq on or about 2006, conducting combat operations in support of Operation ENDURING FREEDOM and Operation IRAQI FREEDOM, respectively. 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 Applicant’s record of service included 6105 counseling warning, for of the Uniform Code of Military Justice (UCMJ): Article 91 (Insubordinate conduct toward WO, NCO or PO); and for of the UCMJ: Article 92 (Failure to obey order or regulation, 2 specifications). The Applicant a pre-service drug waiver for using illicit drugs prior to entering the Marine Corps. acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 24 January 2003. Based on the drug policy violation, processing for administrative separation is mandatory. When notified of administrative separation processing using the procedure, the Applicant rights to consult with a qualified counsel but waived his rights to submit a written statement, and request an administrative board. The Applicant had a pre-trial agreement to plead guilty at an NJP or a SCM and waive his administrative board. The Applicant was notified of separation proceedings for Pattern of Misconduct and Drug Abuse.

Issues 1 and 6: (Decisional) () . The Applicant contends his in-service conduct to include combat deployments warrants an upgrade. The Applicant further contends his post-service conduct warrants an upgrade. 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 to maintain good order and discipline the awarded characterization of service was warranted at the time of separation. However, after detailed analysis and careful consideration of the facts and unique circumstances surrounding the Applicant’s in-service, post-service record, and testimony; the Board determined that partial relief was warranted in this case. The NDRB determined that full relief was not warranted due to the Applicant’s significant in-service misconduct. Additionally, the NDRB determined that no other basis for his separation more accurately describes the reason why the Applicant was separated than due to his drug use. Accordingly, the Applicant’s characterization of service shall change to General (Under Honorable Conditions) and the narrative reason shall remain as issued, MISCONDUCT. Partial relief granted.

Issue 2: (Decisional) () . The Applicant contends his difficulty adjusting after reenlisting in the Military Police warrants an upgrade. While the Applicant may feel that his adjustment to the Military Police community was a contributing factor to his misconduct, it does not mitigate his disobedience of the orders and directives that regulate good order and discipline in the Naval Service, demonstrating he was unsuitable for further service. Relief denied.

Issue 3: (Decisional) () . The Applicant contends the lack of the severity of his misconduct warrants an upgrade. Violations of Articles 91 and 92 are not minor violations and could warrant a punitive discharge if adjudicated at trial by court-martial. Based on the seriousness of the Applicant’s misconduct especially in light of the Applicant being a 5811, the Convening Authority referred the charges to a special court-martial. Rather than risk a punitive discharge and/or lengthy confinement, the Applicant submitted a plea deal in order to avoid the potential punishment awarded at a special court-martial. The NDRB determined this contention to be without merit. Relief denied.

Issue 4: (Decisional) () . The Applicant contends MARFORCOM Order 5355.1 which describes prohibited substances is too vague to inform an ordinary Marine what spice is. The Applicant not only failed to prove this contention, but all the evidence in the record is to the contrary. The Applicant’s professional responsibilities as a 5811 included enforcing the UCMJ and all lawful orders. The Applicant stated in his personal testimony that he knew using spice was prohibited. Additionally, the record clearly shows the Applicant acknowledged that he believed the order was lawful, properly published, and that he had violated it. Furthermore, the Applicant pled guilty to violating the order, the strongest form of proof of guilt. The NDRB discerned no impropriety or inequity and the Applicant’s separation for his misconduct was appropriate. Relief denied.

Issue 5: (Decisional) () . The Applicant contends PTSD mitigates 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 Applicant’s in-service record shows the Applicant was having PTSD symptoms but that they were improving. The Applicant stated that he had not been diagnosed with PTSD by competent medical authority. However, the Applicant did provide a letter from the VA which describes that he is receiving 30 percent disability based on chronic sleep impairment, anxiety, suspiciousness, and depressed mood. Though the Applicant may feel that PTSD and/or other mental health issues 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 the Applicant’s mental health issues were sufficient mitigating factors to excuse the Applicant’s conduct or accountability concerning his actions. In fact, the Applicant’s Commanding Officer stated that the Applicant was given an in-service medical evaluation which showed that he had no medical condition that may have had a material impact on his behavior. Additionally, the VA documents submitted by the Applicant show that he had a Global Assessment of Function score of 75, which indicates no more than slight impairment in social, occupational, or school functioning. After an exhaustive review, the NDRB determined that PTSD did not mitigate the Applicant’s misconduct. Relief denied.

Summary: After a careful review of the Applicant’s post-service documentation and official service records, and the facts and circumstances unique to this case, the Board found the discharge was proper and equitable at the time of discharge. However, the NDRB determined partial relief is warranted based on equitable grounds. Therefore, the awarded characterization of service shall change to GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain MISCONDUCT. The Applicant is no longer eligible for additional reviews or hearings 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