ex-, USMC
MD07-00192

Current Discharge and Applicant’s Request

Application Received:  20061124 	Characterization Received:  other than honorable conditions
Narrative Reason:  MISCONDUCT		Authority:  MARCORSEPMAN 6210.5

Applicant’s Request:	Characterization change to:    
			Narrative Reason change to: 
Applicant’s Issues:	1. Veterans Benefits (Medical) - Equity.
			2. Applicant claims his medical issues contributed to his misconduct and adverse discharge.

Decision

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

Date:  20070912  Location:  Washington D.C.  The Board found that 

Discussion

Issue(s) 1 -Equity:   either  which the Board cannot form the basis of relief for the Applicant, or  the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding .  

Issue 2 – Equity:  The Applicant contends that his psychiatric diagnostic assessment of 20050815 for Posttraumatic Stress Disorder, Adjustment Disorder, Alcohol Dependence and Cannabis Abuse can be attributed to his "misconduct and adverse discharge."  While he may feel that his medical issues were 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.  An upgrade to General (Under Honorable Conditions) would be inappropriate.  

Summary of Service

Prior Service:
Inactive: USMCR (DEP)	20020412 - 20021020  		Active:   	
Period of Service Under Review:
Date of Enlistment: 20021021		Years Contracted:  ; Extension:    		Date of Discharge:  20060113
Length of Service:  03  Yrs  02  Mths  24  Dys	Lost Time:  Days UA:  46 Days Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  49	MOS:  034`  Highest Rank:  
Proficiency/Conduct marks (# of occasions):	3.7(9)/3.0(10)	Fitness reports:   
Awards and Decorations (per DD 214):  COMBAT ACTION RIBBON, IRAQ CAMPAIGN MEDAL, SEA SERVICE DEPLOYMENT RIBBON (W/2 STARS) GLOBAL WAR ON TERRORISM SERVICE MEDAL, GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL, NAVY UNIT COMMENDATION, PRESIDENTIAL UNIT CITATION-NAVY

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

20030306:	MARCORSEPMAN 6105 counseling for underage drinking.  Lack of initiative, maturity, and failure to follow Marine Corps orders and regulations pertaining to underage drinking.  On or about 20030305, you consumed alcohol knowing that you were under age.

20040206:	CO's NJP -- Viol UCMJ Art. 92 - Willfully disobey base order 5000.2H by drinking underage, Art. 108 - Damage military property of the United States by breaking a window, Art. 134 - Drunk and disorderly.
	 Awarded - - FOP ($328.00) for (1 month); Restriction for (14 days); Extra duties (14 days).  FOP suspended for 6 months.

20050405:	CO's NJP -- Viol UCMJ Art. 112a - Wrongfully use of marijuana.
	 Awarded - - FOP ($692.00) for (2 months); RIR (E-2); Restriction for (45 days); Extra duties (45 days).

20050412:	MARCORSEPMAN 6105 counseling for my illegal drug involvement.  THC (marijuana) usage identified through urinalysis confirmed by Navy Drug Lab San Diego message F0082950 dated 20050331.  Applicant was seen by SACO on 20050412.

20050427:	Applicant signed VA treatment location statement.

20050627:	Applicant to unauthorized absence 0700

20050727:	Applicant declared a deserter.

20050812:	Applicant from unauthorized absence 1130 (46 days).

20050815:	Medical Record:  Reason for visit:  History of depressive and post-traumatic stress symptoms who was admitted because he was experiencing suicidal and homicidal ideation secondary to these symptoms and inability to effectively cope with these stressors.
	Diagnosis:  Posttraumatic stress disorder
	Adjustment disorder with depressed mood
	Alcohol dependence
	Cannabis abuse
	Borderline traits
	Recommendation:  Applicant discharged to command with immediate plan to attend inpatient SARP.  Applicant is pending separation for prior legal issues.  If somehow found in good standing, is recommended that applicant be expeditiously separated fro psychiatric reasons.

20050920:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 20050914, tested positive for THC.

20051228:	MARCORSEPMAN 6105 counseling for my illegal drug related incident on 20050621.  Specifically, THC usage identified through and confirmed by NAVYDRUGLAB message F00848648.

20051228:	MARCORSEPMAN 6105 counseling for my illegal drug related incident on 20050912.  Specifically, THC usage identified through and confirmed by NAVDRUGLAB message R2014552 Sep 05.

Discharge Process

Charge(s) Preferred:  20050929 and 20051005
Charge(s) and Specification(s):
	Article 86: Unauthorized absence from 20050627 to 20050812
	Article 112a (2 specs): (1) Wrongful use of marijuana.
	(2) Wrongfully possess some amount of marijuana
	Article 112a: Wrongfully use marijuana.

Date Applicant Submitted SILT request:		20051109
	Consulted with or Waived Counsel:		
	Acknowledged Understanding Elements:	
	Acknowledged Guilt to:			Article(s) 86 and 112a 
		BCD/DD authorized for offense(s)	
	Acknowledged Consequences of OTH:	
	Type of Characterization Requested:	

Commanding Officer Recommendation (date):	   (20051219)
SJA review (date):	 (20051221)
Separation Authority (date):	COMMANDING GENERAL, 1ST MARINE DIVISION (REIN) (20051229)
	Reason for Discharge directed:		
	Characterization directed:			
Date Applicant Discharged:			20060113

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:	Service and/or Medical Record:  		Other Records:  

Related to Post-Service Period:  	
	Employment:  			Finances:  			Education: 		
	Health/Medical Records:  		Substance Abuse:			Criminal Records:  	
	Family/Personal Status: 		Community Service:  		References:  		
	
Additional Statements From Applicant:  	From Representative:    
Other Documentation (Describe)       

Pertinent Regulation/Law

A.  Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY 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 II, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.

C.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Articles 86 (unauthorized for more than 30 days), 92 (willfully disobey an order) and 112a (wrongful use of a contolled substance 9marijuana). 

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe that 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:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the 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.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’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 Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board 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 subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, 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 “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

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 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.  

Board Membership:  The names and votes of the members of the 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