ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20080212
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MARCORSEPMAN  (Drugs)

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

Summary of Service

Prior Service:
Inactive: USMCR (DEP)	20021126 - 20030720  		Active:   

Period of Service Under Review:

Date of Enlistment: 20030721		   Period of Enlistment:   Years   Months		Date of Discharge:  20050622
Length of Service:    Yrs    Mths  02  Dys	Education Level:  	Age at Enlistment:  AFQT:  73           MOS:  0311            Highest Rank:   	Fitness Reports:  
Proficiency/Conduct Marks (# of occasions):   ()/ ()
Awards and Decorations (per DD 214): Rifle  (1)      COC

Periods of UA/CONF:  20050413-20050420 (8 days), Unable to determine type of time lost.

NJPs:	  

SCMs:	1
20050315:  Article 112a (Drug use), Wrongfully use marijuana.
                                  Sentence -   (20050308-20050331 (24 days)) .

6105 Counseling: 
20050209:  For illegal drug-related incident, specifically, marijuana usage identified through urinalysis and confirmed
                     by NAVDRUGLAB message dated 20050131 and testing positive on a urinalysis test for a controlled substance.

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.  Discharge was inequitable because there were no previous incidents.
2.  Did not receive help for his Post Traumatic Stress Disorder (PTSD) issues.

Decision

Date:  20080814		Location:  Washington D.C	 Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  (MISCONDUCT - Drug Abuse).

Discussion

  (Equity):  RELIEF NOT WARRANTED.  The Applicant states his discharge was inequitable because no previous negative incidents in his service had occurred.  For the edification of the Applicant, despite a service members prior record of service certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  In accordance with Marine Corps Order P1900.16F, Marine Corps Separation and Retirement Manual, all Marines (regardless of pay grade) will be processed for administrative separation by reason of misconduct, due to drug abuse, on the first offense.  

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.  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.  The Applicant’s service record was marred by a summary court-martial for a violation of Article 112a (Drug abuse).  A violation of the Uniform Code of Military Justice, Article 112a is considered a serious offense for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial.  There is no evidence in the record, nor has the Applicant produced any evidence, that the command unfairly singled the Applicant out for drug testing or acted contrary to established DOD or Navy regulations.  However, there is credible evidence in the Applicant’s service record that he used illegal drugs and refused to accept medical treatment for substance abuse.  

The record indicates the Applicant was made aware of the current administrative separation procedures for refusal of such treatment.  Additionally, it was noted the Applicant made statements to the appointed Summary Court Martial Officer he purposely used marijuana in hopes of being separated from the Marine Corps.  The Commanding General, 1st Marine Division concurred with the findings of the Summary Court Martial and adjudicated the discharge characterization of service as “Under Other Than Honorable Conditions”.  The Board determined a change or upgrade in the discharge would be inappropriate. 

Issue 2 ():  RELIEF NOT WARRANTED.  The Applicant claims he was suffering from nightmares as a result of PTSD and chronic back pain and was refused help by his command First Sergeant, so he used drugs to self-medicate.  A review of the Applicant’s service entry paperwork revealed he received a drug waiver to enter the Marine Corps.  An additional review of the Applicant’s medical records shows he was seen by medical providers multiple times during his active duty service for health problems such as: chronic back pain; heartburn; allergies; and an injured hand.  On 28 August 2004, in a Post Deployment Health Assessment, the Applicant indicated he was having “nightmares and felt on guard” but refused any mental health assistance, indicating he had no problems.  On 24 January 2005, during a Physical Therapy SMART Clinic visit for his back injury as well during a Sick Call visit for pain in his sternum, he indicated to both screening health care providers he had no other problems at that time.  On 11 February 2005 during his Substance Abuse Screening, he refused counseling assistance.  During his Separations physical, also on 11 February 2005, he said nothing about his PTSD or mental health concerns.  And finally, during his 8 March 2005 Confinement Physical, he again made no comments on possible PTSD issues.  It is important to note one final time the Applicant told the appointed Summary Court Martial Officer he purposely used marijuana in hopes of being separated from the Marine Corps.  He never mentioned PTSD or that he used marijuana to mitigate nightmares as a result of PTSD.  The evidence of record clearly shows the government provided sufficient opportunity for the Applicant to bring up his PTSD medical concerns and he failed to do so.  The Board determined an upgrade would be inappropriate.

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 

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 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 or is referred to a court-martial 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 other medical related reasons.”  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 special 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.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

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