ex-, USMC
MD07-00238

Current Discharge and Applicant’s Request

Application Received:  20061213 	Characterization Received:  UNDER OTHER THAN HONORABLE
Narrative Reason:  MISCONDUCT 		Authority:  MARCORSEPMAN 6210.5

Applicant’s Request:	Characterization change to:    
			Narrative Reason change to: MEDICAL
Applicant’s Issues:	1.  Reenlistment opportunities.
			2.  Employment opportunities.
			3.  Record of overall service.
			4.  Misconduct was caused by PTSD.

Decision

By a vote of 5-0 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS.
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT.

Date:  20071205                   Location:  Washington D.C.	 Representation:  
        
Issue(s) 1-2:  The Board determined that these Issue(s) are not issue(s) which can form the basis for relief for the Applicant or that the Board did not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum. 

Issue 3 (Equity).  The Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service.  There is credible evidence in the record that the Applicant used illegal drugs more than once.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  A under other than honorable conditions discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  Certain serious offenses, even though isolated, warrant separation from the Naval service in order to maintain proper order and discipline. The Applicant’s service was marred by two discharge warnings, one nonjudicial punishment for violating the UCMJ Article(s) 92, Failure to obey order, regulation and 111, Drunken driving, and  a guilty finding at Special Court-Martial for Article(s) 86, Unauthorized absence over thirty days and 112a, Wrongful use of a controlled substance.  Violations of Article(s) 86, 92, and 112a are considered serious offenses for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial.  An upgrade to general (under honorable conditions) would be inappropriate.

 Issue 4 (Equity).  The NDRB found the evidence of record did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded.  The medical evidence of record does not suggest that the Applicant was not responsible for his conduct or should not be held accountable for his actions.  The NDRB did not consider  the diagnosed PTSD as a mitigating factor associated with the Applicant’s in service misconduct.     

The Applicant is also advised that the NDRB does not have the authority to change a reason for discharge  to either “Medical” or “Physical Disability”.   See addendum for additional information. 

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that 

Administrative Corrections to the Applicant’s DD 214

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

	  “2002  06  11”
	Block 12c, Net Active service This Period, should read “02   09   11”	
	  “UNDER OTHER THAN HONORABLE CONDITIONS”

The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate. 

Summary of Service

Prior Service:
Inactive: USMCR (DEP)	20010706 - 20020610  	
Period of Service Under Review:
Date of Enlistment: 20020611		Years Contracted:  	Date of Discharge:  20050321
Length of Service:  02  Yrs  09  Mths  11  Dys	Lost Time:  Days UA:  71  Days Confined:  47
Education Level:  	Age at Enlistment:  	AFQT:  72	MOS:  0351  Highest Rank:  
Proficiency/Conduct marks (# of occasions):	4.2(6)/3.0(7)	 
Awards and Decorations (per DD 214):  RIFLE MARKSMAN BADGE, COMBAT ACTION RIBBON, GLOBAL WAR ON TERRORISM SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON, NATIONAL DEFENSE SERVICE MEDAL, PRESIDENTIAL UNIT CITATION

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

20010628:	Applicant signed Marine Corps policy concerning illegal use of drugs.

20030923:	MARCORSEPMAN 6105 counseling for violation of Article 92 of the UCMJ, by not ensuring that you had a Condition 1 weapon, by not conducting a press check on your weapon before reporting to guard duty.  Your lack of vigilance in following orders and complacency could have resulted in Marines and Sailors becoming injured or killed.  Discharge warning issued.

20040115:	MARCORSEPMAN 6105 counseling for Alcohol related incident, resulting in apprehension by military authorities, which is a violation of Article 111 of the UCMJ.  Specifically, driving under the influence of alcohol.  Discharge warning issued.

20040116:	CO's NJP -- Viol UCMJ Art. 111 - Operate a motor vehicle under the influence of alcohol, Art. 92 (2 specs) - Wrongfully disobey a lawful general order by consuming alcohol under the legal age of 21 on 20040115
	Awarded - - FOP ($668.00) for (2 months); RIR (E-2), Restr for (60 days).  Restr for 15 days suspended for 6 months.

20040217:	SACO recommends outpatient treatment for alcohol dependence.  Never scheduled or attended due to training requirements.  [Extracted from Battalion Surgeon notes 20040723]

20040330:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 20040324, tested positive for THC.

20040405:	Medical Record:  Battalion Aid Station.  Evaluated for suicidal ideations which surfaced during a SACO evaluation for positive test for THC.  [Extracted from Battalion Surgeon notes 20040723]

20040408:	MARCORSEPMAN 6105 counseling for my positive urinalysis of THC, identified by Naval Drug Message R 302133Z.  Advised being administratively discharged.

20040408:	Applicant to unauthorized status.  

20040622:	Applicant self admits himself to VA hospital in MA.  Leaves with Librium.

20040624:	Applicant from unauthorized absence (apprehended) and confined.

20040625:	Medical Record:  Mental Health Clinic.  Applicant states his life is falling apart.  He keeps reliving terrible events that occurred through nightmares and flashback.  He states that he used drugs to self medicate for anxiety and depression related to PTSD symptoms.  He did not use drugs prior to returning from Iraq.  The applicant feels angry, confused and sad.  The applicant was in the VA hospital for treatment and was brought back for UA charges.  He states that he tried to get help for his PTSD symptoms.
	Diagnosis:  PTSD, MDD, single, alcohol abuse.
	Recommendation:  Follow up with MHD when he returns from the brig.  Applicant to see MD or psychiatrist at brig for meds evaluation.

20040723:	Medical Record:  Battalion Aid Station.  Applicant describes that “his life is falling apart” and that he “doesn’t know what’s happening to his body or his mind” and that he needs a refill of Librium.

20040817:	SPCM -- Viol UCMJ Art. 112a - Wrongful use of marijuana., Art. 86 - Unauthorized absence (71 days).
	Awarded - -RIR (E-1); Confinement (60 days).

20040817:	Applicant to confinement.

20040930:	Applicant from confinement.

20041007:	MARCORSEPMAN 6105 counseling for my positive urinalysis test of THC, as identified by Naval Drug Message R 302133Z Dec 03.  Being processed for administrative separation.

20041019:	Applicant refused treatment for addiction.

20041025:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 20041014, tested positive for THC.

Discharge Process

Date Notified:	20050103
Basis for Discharge:	 DUE TO  AND 
	 DUE TO 
Least Favorable Characterization:	
Commanding Officer’s Intended Recommendation:	

Date Applicant Responded to Notification:		20050103
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	Administrative Board			

Commanding Officer Recommendation (date):	 (20050103)
SJA review (date):	 (UNDATED)
Separation Authority (date):	COMMANDING GENERAL, MARINE AIR GROUND TASK FORCE TRAINING (20050302)
              Basis for discharge directed:	 DUE TO DRUG ABUSE AND A PATTERN OF MISCONDUCT.
              Characterization directed:	
Date Applicant Discharged:	20050321

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.  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.

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, Article 86, 92, and 112a.

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