ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20080415
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MARCORSEPMAN 

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

Summary of Service

Prior Service:
Inactive: USMCR (DEP)	19990310 - 19991227  		Active:   

Period of Service Under Review:
Date of Enlistment: 19991228		   Period of Enlistment:   Years   Months		Date of Discharge:  20030916
Length of Service:    Yrs    Mths  19  Dys	Education Level:  	Age at Enlistment:  	AFQT:  35
MOS:  1171  	Highest Rank:   			Fitness reports:  
Proficiency/Conduct Marks (# of occasions):	  ()/ ()
Awards and Decorations (per DD 214):  Rifle    LOA

Periods of UA/CONF:  20020718 (period not listed)
NJPs:	
20030117:  Article 86 (Fail to go to appointed place of duty),
                   Article 112a (Wrongfully use marijuana).
                   Awarded -   .  Susp - .

SCMs:	

SPCMs:	

CC:	

6105 Counseling: 

Types of Documents Submitted/reviewed

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) : Four pages from the internet about enlistment standards;
                                                            Notice of Arrest, Release Bail, Bond, or own recognizance (5 pages).

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

Applicant’s Issues

1.  Erroneous enlistment.
2.  Improper discharge characterization.
3.  Denied requested medical assistance; rates an entry level separation as a result.
4.  Desired witnesses at his Administrative Separation hearing were not present.

Decision

Date:  20080821        Location:  Washington D.C.	 Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  MISCONDUCT (Drugs).

Discussion

: ()  RELIEF NOT WARRANTED.  The Applicant claims he was erroneously enlisted because he entered boot camp without sufficient high school course credits and did not graduate from High School.  A review of the Applicant’s service record indicates in 1999, when the Applicant enlisted, the USMC Recruiting Command policy allowed applicants who had sat through the last day of senior high school but did not earn a diploma to enlist as a Tier II candidate, also known or referred to as 12J; the only caveat being the individual must complete his GED in order to reenlist.  The Kingman High School Counselor, Mr. John M., certified on 15 December 1999 that the Applicant was present in school on 28 May 1999, the last day of the 12th grade.  The USMC Recruiting Station Executive Officer, Capt J. W. C., signed a statement dated 28 December 1999 verifying the Applicant was a TIER II, 12J candidate.  In accordance with his enlistment contract, the Applicant earned his GED on 19 December 2003.  The Applicant infers the executive officers memo is not valid because it is not verified.  Verification of this form is an administrative requirement when copies of files are forwarded from the Recruiting Station to the Military Entrance Processing Station (MEPS).  Lack of verification on this form does not invalidate the original document or remove the Applicant’s responsibility from fulfilling the required obligation as agreed upon.

The Applicant additionally states he was erroneously enlisted because he had two outstanding traffic tickets, which the recruiter said he would “take care of”.  USMC Recruiting Command personal background checks on potential recruits only screen for arrests (past and pending warrants); outstanding traffic tickets would only be known by the recruiter through self-admission.  The USMC Recruiting Command verified during a phone conversation that recruiters are required to inform Applicants that all legal issues, to include traffic tickets, must be settled prior to entering boot camp.  It is not USMC policy to intervene in civil law matters, which includes settling traffic violations for potential recruits.  Aside from his personal statement, the Applicant provides no evidence his recruiter promised to resolve these tickets for him on behalf of the Marine Corps.  

The Applicant had three opportunities to reveal he had unresolved traffic tickets.  The first opportunity would have been in a closed interview between the Recruiting Station SNCO and the applicant; the second at the MEPS, before he shipped to boot camp; and finally during the “Moment of Truth”, while at boot camp.  The record indicated on 10 March 1999, the Applicant was asked by SSgt Christopher C., USMC MEPS Liaison, if he needed a Moral/Traffic Ticket Waiver.  This waiver statement signed by the SSgt indicates the Applicant had no traffic tickets pending and no outstanding fines.  If the violations are revealed after the recruit has completed boot camp, as is the case with the Applicant, the enlistment contract is not automatically voided.  The decision to void the enlistment contract is based on the severity of the charges.  Whenever possible, the Marine is given the opportunity to settle the pending legal issue with civil authorities and return to duty.  The Applicant states his unit supported his attempts to resolve his civil law matters.  The Board determined an upgrade based on this issue 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.  The Applicant record of service was marred by 1 non-judicial punishment for violations of Article 86 and 112a of the Uniform Code of Military Justice.  Both of these violations are considered serious in nature and could earn a punitive discharge and confinement if adjudicated by a special or general court-martial.  The command did not pursue a punitive 

discharge but opted instead for an administrative discharge.  The Board determined the characterization of discharge was appropriate and an upgrade would be inappropriate.  

Issue 3: (Equity) RELIEWF NOT WARRANTED.  The Applicant claims unresolved feelings concerning his brother’s death in a house fire a year before he entered boot camp caused him psychological distress, which resulted in a 5 day UA period right after boot camp.  The Applicant believes since he was neither emotionally nor mentally fit for duty, and was not given medical assistance, he rates an entry level separation.   For the edification of the Applicant, a member qualifies for an entry level separation during the first 180 days of continuous active military service.  The member’s status is determined by the date of notification as to the initiation of separation proceedings.  Additionally, the entry level status must not be interrupted by unauthorized absences or desertion.  

A review of the Applicant’s Medical Treatment Record report dated 1 May 2000 indicated the Applicant stated he would like counseling, but he does not want to get out of the USMC; he wanted to finish his training.  On 4 May 2000, the Applicant again went to sick call and stated he wanted to see a counselor.  Since the issue revolved around his brother’s death and possible grieving, his health care provider, while noting a possible adjustment disorder, recommended he first see the chaplain for further assistance.  Since counseling records between a military member and his religious provider are confidential, the NDRB cannot verify if the Applicant saw the chaplain but assume he carried out this advice from his health care provider.  There are no medical records which show the Applicant saw a mental health specialist at that time.  We do know the opportunity was provided to him to see the chaplain, who would have recommended psychological counseling if he thought the Applicant needed it.  On 19 June 2000, when he arrived at Camp Lejeune for his Military Occupational Specialty training, he stated in his medical assessment form he did not have any psychological problems preventing him from completing his training.  There are no further references to the Applicant seeking mental health counseling until August 2002, while he was pending disciplinary action after his return from unauthorized absence.

The Applicant claims he used marijuana to help with emotional issues for which he did not received requested psychiatric help.  On 23 August 2002 (as referenced above), after his return from a 60 day UA period, the Applicant was seen for depression by his unit Flight Surgeon, Lt G.  He was given a mental health referral and told to seek help from the chaplain and his command.  The Applicant had a pre-service drug waiver and admitted during his Mental Health Consultation dated 4 September 2002 that he experimented with marijuana, but likes to drink a lot.   His doctor noted during the interview he was under minimal distress.  On 4 September 2002, Dr. M. S., a Mental Health Specialist, interviewed the Applicant and writes the Applicant had been seen twice previously for Adjustment Disorder during May 2000, although the review only found one reference as stated above.  Dr S. recommended he continue with counseling and return in 1-2 weeks for consultation; alcohol abuse is listed as his largest challenge.  On 31 October 2005, the Applicant was offered counseling for his substance abuse, however, he declined assistance.  The Applicant’s medical records document he was given the opportunity to see a counselor whenever he asked and there is no documented evidence he was denied medical treatment as claimed.  The Board determined an upgrade based on this issue would be inappropriate.

Issue 4: ()  .  The Applicant states since his unit was deployed to Afghanistan at the time of his Administrative Separation Board for Drug Abuse, he was denied the opportunity to have witnesses who knew him well speak on his behalf.  Per paragraph 6317 of MCO P1900.16F (MARCORSEPMAN) testimony can be presented by personal witnesses, written depositions and unsworn statements.  The President of the Administrative Separation Board or the Applicant’s legal advisor may fund witness travel if the personal appearance of the witness is essential to the fair determination on the issues of separation or characterization; if written or recorded testimony will not accomplish the same objectives; if the significance of the personal appearance of the witness, when balanced against the practical difficulties in producing the witness, favors production of the witness.  Since the Applicant’s desired witnesses were deployed to a theater of conflict, their personal appearance would not be deemed practical.  His lawyer could have requested the witnesses’ presence if he felt they would materially alter the outcome of the board.  However, he did not.  In any case, written statements from the Applicant’s witnesses attesting to his character and accomplishments could also have been submitted.  They were not.  The NDRB determined the Applicant’s Administrative Separation Board was properly conducted despite the Applicant’s claim he was unable to obtain his desired witnesses for a personal appearance to speak on his behalf.  It is not believed the evidence provided by these witnesses would have or could have altered the outcome of the Board due to the nature of the offense; wrongful use of marijuana.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service,  Record, Discharge Process and evidence submitted by the Applicant, the Board found 

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 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 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