ex-, USMC
MD07-00581

Current Discharge and Applicant’s Request

Application Received:  20070328 	        Characterization Received:  
Narrative Reason:  MISCONDUCT 					      Authority:  MARCORSEPMAN 6210.5

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. Disability benefits
			2. Used marijuana to self-medicate PTSD from combat wounds
			3.  Post-service conduct

Decision

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

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

Discussion

Issue 1:   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 ().  The Applicant does not deny his illegal drug use but claims that he was “putting the process of healing into [his] own hands” by purposely using marijuana.  The Board did not dispute the fact that the Applicant was severely injured in combat, nor the subsequent diagnosis that he suffered from post traumatic stress syndrome.  At issue, however, is whether or not the Applicant’s syndrome caused him to use illegal drugs such that he was not responsible, nor should be held accountable, for that misconduct or, in the alternative, whether that misconduct was otherwise mitigated.  The Board concluded that there was not sufficient evidence to conclude that it did.  Mandatory processing for separation is required for Marines who abuse illegal drugs and normally results in separation with a characterization of service under other than honorable conditions, even when based on a single use.  The Applicant’s use was repeated, even in the face of disciplinary action.  The Board concluded that the Applicant was likely not discharged with a punitive discharge at his special court-martial because of his combat service.  His subsequent and repeated illegal drug use was appropriately addressed.  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.  

Issue 3 ().  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 could 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.  The Applicant submitted evidence of post-service employment and substance abuse rehabilitation treatment.  However, as of this time, the Applicant has not provided sufficient post-service documentation for the Board to consider mitigating the misconduct that resulted in the characterization of discharge. 

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)	20021122 - 20030907  		Active:   	
Period of Service Under Review:
Date of Enlistment: 20030908	Years Contracted:  ; Extension:  	Date of Discharge:  20060214
Length of Service:  02  Yrs  05  Mths  07  Dys	Lost Time:  Days UA:    Days Confined:  24
Education Level:  	Age at Enlistment:  	AFQT:  43/62	MOS:  0311  Highest Rank:  
Proficiency/Conduct marks (# of occasions):	3.7/3.7(NOT FOUND IN RECORD)	Fitness reports:   
Awards and Decorations (per DD 214):  PH, CAR, GWOTSM (IRAQ), IRAQ CAMPAIGN MEDAL, SSDR, NDSM, RIFLE E

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

20041113:	Applicant sustained shrapnel wounds to left hand, right forearm and right leg from explosion and small arms fire while participating in combat operations in Fallujah, Iraq.

20051013:	SPCM -- Viol UCMJ Art. 112a – Wrongfully used marijuana abt 20050615.
	Awarded - Letter of reprimand.  CA action:  Approved, 20051018.

20051025:	Substance Abuse Counseling Center Screening Report:  Applicant screened 20050602
	Diagnosis:  Posttraumatic Stress Disorder; No diagnosis for drug abuse or dependence.
	Recommendation:  Does not require treatment for alcohol; should continue care for PTSD at nearest VA center to home of record.

20051212:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 20051205, tested positive for THC (34 ng/ml).

20051212:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 20051206, tested positive for THC (262 ng/ml).

20060103:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 20051223, tested positive for THC (44 ng/ml).

20060111:	Applicant offered to accept summary court-martial, plead guilty to violation of Article 112a, UCMJ, and waive administrative discharge board in exchange for withdrawal of charges from special court-martial.

20060125:	SCM -- Viol UCMJ Art. 112a – Wrongfully used marijuana diverse occasions 20051114 - 20051214.
	Awarded -  FOP ($849.00) for (1 months); RIR (E-1); Confinement (30 days).
	CA action:  Approved, 20060125.

Discharge Process

Date Notified:	20060130
Basis for Discharge:	 DUE TO:  
Least Favorable Characterization:	
Commanding Officer’s Intended Recommendation:	

Date Applicant Responded to Notification:		20060131
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			 
	Administrative Board			

Commanding Officer Recommendation (date):	 (20060131)
SJA review (date):	 (20070209)
Separation Authority (date):	CG, 3D MARINE DIVISION (20060210)
              Basis for discharge directed:	 DUE TO:  
              Characterization directed:	
Date Applicant Discharged:	20060214

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)  Letter from spouse

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, Wrongful use, possession, etc., of controlled substances.

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