ex-PVT, USMC

Current Discharge and Applicant’s Request

Application Received:  20071228
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MARCORSEPMAN  (misconduct, drug abuse)

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 

Summary of Service

Prior Service:
Inactive: USMCR (DEP)  20030920 - 20031109  			
Period of Service Under Review:
Date of Enlistment: 20031110		   Period of enlistment:   Years   Months		Date of Discharge:  20060420  
Length of Service:  02 Yrs  04 Mths   17 Dys	Education Level:  	Age at Enlistment:  19	AFQT:  33
MOS:  3531    	Highest Rank:  LCPL 			
Proficiency/Conduct marks (# of occasions):	 3.7 / 3.3 
Awards and Decorations (per DD 214): SSDR, NDSM, GWOTEM, GWOTSM, Rifle MM 

Periods of UA/CONF: 0 / 24

NJPs:	1
	20060307:  Art 112a (Drug Abuse)		Awarded – FOP, RESTR, EPD	Susp - 
	
SCMs:	1
	20051103:  Art(s) 99 ( Misbehavior before the enemy), 112 (Drunk on duty) 
	Sentence - , , 

6105 Counseling: 

Types of Documents Submitted

Related to Military Service:	DD 214:  	Service and/or Medical Record:  		Other Records:  

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

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1.  Clemency relief. 
2.  Record of service.
3.  PTSD was a casual factor in misconduct.

Decision

Date:  20080502	                        Location:  Washington D.C	 Representation:  

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

Discussion

The Naval Discharge Review Board offers its sincere condolences to the family of PFC C_ for the loss of their son.   It was with the greatest respect of  PFC C_’s service to our country the Board considered PFC C_’s , and what ultimately has become the family’s request,  to review all available documentation and events leading up to his discharge and weigh those events against the standards of Naval discipline applied throughout our great Service.  The Board was mindful of PFC C_’s contribution to both the Marine Corps and our Country and it was in this light the members reflected on all the circumstances surrounding this tragic case. 

:   either  which the Board cannot form the basis of relief, or  the Board does not have the authority to grant the relief for which the family have petitioned.  The family is directed to the Addendum page which provides further guidance regarding , specifically the paragraph concerning medical conditions and misconduct.

Issue 2 (Equity).  The Board reviews the propriety and equity of a 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 a discharge is inconsistent with discipline standards of the Naval service.  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.  

There is credible evidence in the record to document PFC C_ used illegal drugs prior to deploying to Iraq.   This evidence is PFC C_ ’s own voluntary written statement submitted on 3 March 2006 stating he smoked marijuana while on active duty prior to a deployment to Iraq.  There is also evidence of post deployment drug use as documented during a command urinalysis which identified PFC C_  has having used steroids.  PFC C_  further admitted both taking steroids in pill form and obtaining additional liquid steroids requiring injection but failed to obtain syringes before being caught during the urinalysis.  The record indicates PFC C_ ’s motivation for obtaining and taking the steroids was to bulk up and make up for the training time he had lost in anticipation of returning to Iraq.  The record indicates the lost training time was the result of being confined to quarters as part of his sentence received from a Summary Court Martial  for misconduct while in Iraq.   The evidence of record did not demonstrate PFC C_  was not responsible for his conduct or that he should not be held accountable for his actions.   In fact, the Board felt that both his statements and actions proved otherwise.  

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 one nonjudicial punishment for a violation of the Uniform Code of Military Justice (UCMJ) Article 112a (Drug Use) and one Summary Court Martial guilty finding for violations of the UCMJ Article(s) 99 (Misbehavior before the enemy) and Article 112 (Drunk on duty).   Based on these charges and a review of the disciplinary process used by the command a change or upgrade in the characterization of discharge by the NDRB would be inappropriate.  

Issue 3 (Equity).  Again, there is credible evidence in the record PFC C_  used illegal drugs more than once. This misconduct occurred before and after his deployment to Iraq.  PFC C_  does not deny but freely admitted all of his misconduct.  The NDRB concluded that the military medical evidence of record does not support a PTSD claim but references adjustment disorder; even the Veterans Affairs doctors were at first reluctant to diagnose PTSD.  Regardless, PFC C_ ’s drug use and misconduct, by his own statement, occurred before first deploying to Iraq and the steroid use, although post deployment was used to try and get fit quickly for possible redeployment.  The NDRB did not consider the undiagnosed PTSD as a mitigating factor associated with his misconduct and therefore the Board concluded he was still responsible for his actions.   The Board acknowledges PFC C_ ’s duty in Iraq was stressful and upsetting however, his actions upon returning from Iraq and after his summary court martial still did not support PTSD as a factor for his misconduct. 

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, Discharge Process and evidence submitted by the Applicant, the Board found that the discharge was proper and equitable and in keeping with the standards of discipline within the Naval service.  We regret the evidence of record could not support a more favorable outcome for this particular case. 

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(s) 99, 112, 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