ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20080506
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)	19991211 - 19991213  		Active:   

Period of Service Under Review:
Date of Enlistment: 19991214		   Period of Enlistment:   Years   Months		Date of Discharge:  20031212
Length of Service:    Years    Months   29  Days	Education Level:  	Age at Enlistment:  	AFQT:  42
MOS:  0311  	Highest Rank:   			Fitness Reports:  
Proficiency/Conduct Marks (# of occasions):	4.3/4.1 (10)
Awards and Decorations (per DD 214):  Rifle: SS Pistol: SS, SSDR x2, NDSM, PUC, Mert Mast x2, CAR.

Periods of UA/CONF:     SCM:  NONE   SPCM:  NONE  CC:  NONE

NJP:  3
	- 2001:  Not in OMPF.  Referred to in discharge package.
	- 20020909:  Article 134 (Drunk and disorderly).
	                     Awarded:  RIR (E2), FOP ($619 for 2 months), RESTR EPD (45/45)  
                                   Suspended:  RIR, FOP, RESTR EPD for 6 months.
	- 20031113:  Article 112a (Drug use, wrongful use of marijuana).
	                     Awarded - RIR (E2), FOP ($645 for 2 months), RESTR EPD (45/45)  
                                    Suspended:  None

6105 Counseling: 2
20020917:  For being drunk and disorderly while on liberty while resisting arrest and interfering with a police officer in the performance of his duties.
20030922:  For wrongful use of marijuana and being processed for involuntary separation.

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):  
	- Statement in support of VA claim dated 27 NOV 2007.
	- Excerpt from Service Medical Record dated 14 AUG 2003.
	- Undated excerpt from Service Medical Record indicating member is fit for separation (leg trauma from Iraq noted).
	- Character reference letter from Applicant's wife dated 29 NOV 2007.
- CalWORKs Client Employment Plan dated 25 MAY 2007.
	- Statement in support of VA Claim dated 23 MAR 2008.

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

Applicant’s Issues

1.  Employment opportunities.
2.  Isolated incident.
3.  Post Traumatic Stress Disorder (PTSD) self-medication.

Decision

Date:  20090409		Location:  Washington D.C.	 Representation:  

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

Discussion

:   either  which the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum, specifically the paragraph concerning Employment/Educational Opportunities, regarding .

:  ()  .  The Applicant contends his drug use while in-service was an isolated incident.  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 record was marred by three NJPs and two retention warnings for violations of the Uniform Code of Military Justice (UCMJ):  Article 112a (Drug use, wrongful use of marijuana) and Article 134 (Drunk and disorderly).  It was noted in the Applicant’s Report of Medical History dated 10 December 1999 an admittance of pre-service marijuana use was entered.  The NDRB advises the Applicant certain serious offenses, even though isolated, warrant separation from the service in order to maintain proper order and discipline.  Violation of Article 112a is one such offense requiring mandatory separation regardless of time in service, grade or record of service.  Violations of this policy result in, at a minimum, mandatory processing for an administrative separation which usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence 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 awarded discharge was appropriate and an upgrade to the Applicant's discharge would be inappropriate.

: ()  .  The Applicant contends his discharge was inequitable because he was suffering from PTSD.  The Board noted the Applicant was diagnosed with PTSD in August of 2003 and was offered treatment.  Despite this, the Applicant still violated the Department of the Navy and Marine Corps drug policy by wrongfully using an illegal drug, marijuana.  There is no evidence in the record stating the Applicant was not responsible for his actions of purchasing and using marijuana due to PTSD.  As stated above, the Applicant already had a history of illegal drug use prior to entering the military; there was no documented connection between PTSD and his returned use of the same illegal drug he previously used before military service.  The Board determined the awarded discharge was appropriate and an upgrade to the Applicant's discharge would be inappropriate.

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 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, Article112a (Drug use, wrongful use of a controlled substance).

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