ex-, USMC
MD07-00403

Current Discharge and Applicant’s Request

Application Received:  20070206	Characterization Received:  
Narrative Reason:  MISCONDUCT 		Authority:  MARCORSEPMAN 6210.5

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. Discharge was a result of PTSD after returning from Iraq

Decision

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

Date:  20071204       	Location:  Washington D.C.  Representation:  dav  

Discussion

Issue 1: ().  The Applicant contends that his disciplinary issues that led to his separation were caused by Post Traumatic Stress Disorder (PTSD) upon returning from duty in Iraq.   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 generally does not consider the circumstances surrounding an Applicant’s stated condition, the implied incorrect diagnosis, nor the medical treatment given to an Applicant to be of sufficient nature to exculpate an Applicant’s narrative reason for discharge.  When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  An 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.  The Applicant’s conduct during the current period of service, which forms the primary basis for determining the character of his service was marred by five retention warnings, one nonjudicial punishment (NJP) for violations of the Uniform Code of Military Justice (UCMJ) Article 112a  [Wrongful use of controlled substances (three specifications)].  Violation of UCMJ Article 112a is considered a serious offense for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial.  While the applicant now claims PTSD is the root cause of his disciplinary problems, he admitted in a written statement during his separation proceedings that he turned to marijuana as a last resort to relieve stress, that he was aware that marijuana was an illegal substance, and that it was a  bad decision on his part to use marijuana.  An upgrade to honorable would be inappropriate.   

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  

Summary of Service

Prior Service:
Inactive: USMCR (DEP)	20010226 - 20010813  		Active:   	
Period of Service Under Review:
Date of Enlistment: 20010814	Years Contracted:  ; Extension:  	Date of Discharge:  20050408
Length of Service:  03  Yrs  07  Mths  25  Dys	Lost Time:  Days UA:    Days Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  42	MOS:  0351  Highest Rank:  
Proficiency/Conduct marks (# of occasions):	3.9(8)/3.9(8)	Fitness reports:   
Awards and Decorations (per DD 214):  MARINE CORPS GOOD CONDUCT MEDAL, COMBAT ACTION RIBBON, GLOBAL WAR ON TERRORISM SERVICE MEDAL, GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL, SEA SERVICE DEPLOYMENT RIBBON, NATIONAL DEFENSE SERVICE MEDAL, NAVY PRESIDENTIAL UNIT CITATION, SHARPSHOOTER RIFLE BADGE, MARKSMAN PISTOL BADGE

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

20040315:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 20040310, tested positive for (THC).

20040319:	MARCORSEPMAN 6105 counseling for drug use, specifically THC (Marijuana).

20040324:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 20040319, tested positive for (THC).

20040325:	MARCORSEPMAN 6105 counseling for drug use, specifically THC (Marijuana).

20040602:	MARCORSEPMAN 6105 counseling for illegal drug use, specifically THC.

20040617:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 20040610, tested positive for (THC).

20040624:	MARCORSEPMAN 6105 counseling for personality disorder, due to major depression and post traumatic stress disorder.

20050110:	NJP -- Viol UCMJ Art. 112a – (3 Specs), Wrongful use of THC.
	Awarded - FOP ($692.00) for (2 months); RIR (E-2); Restr for (45 days).

20050128:	Medical Record:  Reason for visit:  To determine Applicant’s suitability for further service and treatment recommendation.  Applicant has been hospitalized on a continuous basis since 20040125 for Major Depression and Post Traumatic Stress Disorder.
	Diagnosis: 
Axis I: Post Traumatic Stress Disorder Major Depression Disorder
Axis II: Personaltiy Disorder Not Otherwise Specified with Avoidant/Dependent Traits.
Axis III: None
Axis IV: Occupational Stress
Axis V: 65 severe problems with functioning  
	Recommendation:  The service member is unsuitable for continued military service on the basis of the diagnosis for Personality Disorder Not Otherwise Specified with Avoidant/Dependent Traits.  I recommend expeditious administrative separation.  

20050128:	MARCORSEPMAN 6105 counseling for personality disorder, specifically major depression and post traumatic stress disorder and drug use, specifically THC (Marijuana).

Discharge Process

Date Notified:	20050128
Basis for Discharge:	PERSONALITY DISORDER
	 DUE TO:  
	
Least Favorable Characterization:	
Commanding Officer’s Intended Recommendation:	

Date Applicant Responded to Notification:		20050128
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			 (20050128)
	Administrative Board			

Commanding Officer Recommendation (date):	 (20050128)
SJA review (date):	 (20050330)
Separation Authority (date):	COMMANDING GENERAL, 1ST MARINE DIVISION  (20050404)
              Basis for discharge directed:	 DUE TO:  
              Characterization directed:	
Date Applicant Discharged:	20050408

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 
01 Sep 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 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