ex-, USMC
MD07-00884

Current Discharge and Applicant’s Request

Application Received:  20070608 	Characterization Received:  
Narrative Reason:  COURT-MARTIAL 		Authority:  MARCORSEPMAN 1105 SPCMSONO 05-1381

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. The Applicant did not use illicit drugs by the Applicant prior to combat
			2. Applicant was diagnosed with PTSD after his experiences in combat
			3. Combat was the source of head trauma and depression resulting in self medication 
			4. Clemency

Decision

By a vote of  the Characterization shall  .	
By a vote of  the Narrative Reason shall  COURTS-MARTIAL

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

Discussion

Issue 1: ().  The Applicant contends that he did not use illicit drugs prior to experiencing combat.  On the Applicant’s Report of Medical History form that the Applicant completed and signed during his induction into the Marine Corps, the Applicant admitted to using marijuana five times. 

Issue 2: ().  The Board found credible documentation in the Applicant’s record to establish that the Applicant did develop Post Traumatic Stress Disorder (PTSD).  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. 
The Board concluded that despite the Applicant’s condition, the affects of PTSD were not sufficient to be exculpatory or significantly mitigate the Applicant’s conduct that resulted in his reason for discharge.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his failure to meet the standards and requirements of his contract with the Marine Corps and falls far short of that required for an upgrade of his characterization of service.  An upgrade to honorable would be inappropriate.  

Issue 3: (). The Applicant contends that the experiences of combat and head trauma he received in combat later developed into depression which resulted in the Applicant self medicating.  The Applicant had open access to competent medical authority throughout his commitment in the Marine Corps.  Choosing to self medicate with illicit drugs in addition to using legal medical services was the Applicant’s choice.  The record does not reflect that the Applicant raised the issue that legal medical services were not sufficiently addressing his depression.  The Applicant was fully aware of the Marine Corps’ Policy on use of illicit drugs and knowingly made a conscience decision to acquire and use illicit drugs.  Additionally, after review of the Applicant’s record, the Board found no medical diagnosis that indicated that the Applicant was not capable of making responsible decisions.  

Issue 4: ().  In response to the Applicant’s clemency request, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts.  With respect to a discharge adjudged by a court-martial case, 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 Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  The NDRB found the evidence of record did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offense for which the discharge was awarded.  In addition, the reason for discharge, convicted by special court-martial, is most appropriate.  After a thorough review of the Applicant’s record, issues submitted, and post service accomplishments, the Board determined that clemency was not warranted and that the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed.

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)	20001107 - 20010826  		Active:   	
Period of Service Under Review:
Date of Enlistment: 20010827	Years Contracted:  ; Extension:  	Date of Discharge:  20050713
Length of Service:  3  Yrs  8  Mths  4  Dys	Lost Time:73Days UA:  28  Days Confined:  32
Education Level:  	Age at Enlistment:  	AFQT:  58	MOS:  0351  Highest Rank:  
Proficiency/Conduct marks (# of occasions):	3.9(  )/3.9(  )	Fitness reports:   
Awards and Decorations (per DD 214):  RIFLE EXPERT BADGE (2ND AWD), NATIONAL DEFENSE SERVICE MEDAL, COMBAT ACTION RIBBON (2), NAVY AND MARINE CORPS ACHIEVEMENT MEDAL, GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL, SEA SERVICE DEPLOYMENT RIBBON, PRESIDENTIAL UNIT CITATION-NAVY.

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

20001107:	Report of Medical History:  Applicant admits to marijuana use 5 times prior to September 2000.

20030116:	Applicant completes Pre-deployment Health Assessment

20030208:	Applicant arrives in theater

20030410:	Applicant’s conduct in combat is awarded later by a Navy/Marine Corps Achievement Medal with “Combat V”.

20030610:	OEF Post Deployment Checklist Meds started 20030521 Doxycycline and Primaquine

20030818:	Applicant refuses medical evaluation after failing urinalysis 20030716 for methamphetamines

20030916:	NJP -- Viol UCMJ Art. 112a – Wrongfully use methamphetamines on or about 20030620.
	Awarded -  FOP ($767.00) for ( 1 months); RIR (E-1); 60 days restriction.

20031003:	Medical Record: Applicant fit for Separation

20031104:	Cocaine Urinalysis- Admits to using it in the BEQ (Extracted from SPCM documents)

20031010:	Medical Record: Report of Medical Assessment: Mention of lower back pain only.

20031215:	Medical Record: Possible Stress for Discharge from USMC, Deployment of friends no other causes in family or friends

20040114:	Medical Record: Referral for PTSD.  Began June 2003.  AAV hit by RPG’s – feared for his life.  After NJP 7/03, felt worthless and depressed…….AD 12 months…improved his conditions

20040226:	Medical Record: Diagnosed with PTSD – started Zolof 

20040303:	SPCM Record: Urinalysis positive for THC 

20040311:	SPCM Record: Urinalysis positive for THC

20040311:	SPCM Record: Urinalysis positive for Cocaine

20040325:	SPCM Record:  Applicant to Unauthorized Absence status

20040324:	SPCM Record:  Applicant Missed movement with Unit to CAX at 29 Palms Applicant admits no medical reason not to go

20040423:	SPCM Record: Applicant Apprehended while in Unauthorized Absence status

20040423:	SPCM Record:  Applicant admits to buying Special K

20040525:	SPCM Record: Shortly after arriving back from Iraq in June 2003, recognized as a home town hero.  Arriving back from post deployment leave (September), he is notified he popped positive for meth.  Applicant acknowledges drug problem.  MJ gives Applicant opportunity to attend drug rehab.

20040604:	Medical Record: PTSD mild, alcohol abuse, adjustment disorder, depressed mood

Discharge Process

Bad Conduct Discharge

Charge(s) and Specification(s):  Article 86, Spec 1; Article 87a, Spec 1 . Article 112a, Spec 5
Preferred:  20040430	Court-martial:  date 20040525	Findings:  Guilty of Article(s) 86, 87, and 112a.
Sentence:  BCD; Conf 7 months; RIR E-1; FOP       ; Other:  	 	CA action:  20041208
NC&PB Action:  NONE    Clemency: 	Parole:     Restoration:  				
Appellate Review Complete:  20050425	BCD ordered executed:  20050607 SSPCMCO No. 217-04
Applicant Discharged:  20050713

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)  State of Idaho Fifth Judicial District - Disposition

Pertinent Regulation/Law

A.  Paragraph 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURT-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 01 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 IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications.

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 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