ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20080916
Characterization of Service Received:   UNDER OTHER THAN HONORABLE
Narrative Reason for Discharge:    
Authority for Discharge:  MARCORSEPMAN 

Applicant’s Request:  Characterization change to:   or General (under honorable conditions)
		       Narrative Reason change to:  

Summary of Service

Prior Service:
Inactive: USMCR (DEP)	20041026 - 20041201  	Active:	
20041217 - 20041227  
Period of Service Under Review:
Date of Enlistment:  20041228	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20070917	Highest Rank:  
Length of Service:    Years    Months   20  Days
Education Level:  	AFQT:  77
MOS:  0341
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	RIFLE SS  ICM, GWOTSM, NDSM

Periods of CONF:  

NJP:  

- 20050614:	Article 92 (Drinking alcoholic beverages under the legal drinking age of 21 years)
	Awarded:     Suspended:  

- 20060926:	Article 92 (Failure to obey a lawful order: operated a motor vehicle while impaired by alcohol)
	Awarded:      Suspended:  

- 20061205:	Article 92 (Failure to obey a lawful order by possessing and consuming alcohol in BEQ)
	Awarded:     Suspended:   

- 20070426:	Article 86 (Absent himself from his appointed place of duty 1745, 20070408 -1000, 20070411) (2 days, 16 hours, 15 minutes)
	Article 91 (Insubordinate conduct towards a Staff Non-Commissioned Officer, disobeying a direct order.)
	Article 111 (On or about 20070408, operate a motor vehicle while impaired by alcohol.)
	Article 112 (Impaired by alcohol while being posted as a roving watch for HP 175.)
	Awarded:       Suspended:      
SCM: 

- 20070629:	Article 134 (Consuming alcohol while on restriction)
	Sentence:   Suspended:    

Retention Warning Counseling:  

- 20050614:	For violation of Article 92 underage consumption of alcohol, under the legal drinking age of 21. 

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

	  “UNDER OTHER THAN HONORABLE CONDITIONS”
	  “MISCONDUCT”

The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.

Types of Documents Submitted/reviewed

Related to Military Service: 
              DD 214:  	                            Service/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 Congress member:    

                    Other Documentation:  

Pertinent Regulation/Law

A   Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 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 II, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.

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

Applicant’s Issues

1.  Wants to further his education and eventual success with his career.
2.  Discharge was not proper and fair because of his post-traumatic stress disorder (PTSD) and possible traumatic brain injury (TBI).  He was never provided counseling or treatment for his PTSD.
3.  Service-wide basis for discharge.
4.  Similar characterization and narrative reason.
5.  Post-service factors warrant consideration.

Decision

Date:  20091022		Location: Washington D.C.	 Representation: 

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

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.  In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant’s record of service included one 6105 counseling warning; four  nonjudicial punishments (NJPs) for  of the Uniform Code of Military Justice (UCMJ): Article 86 (Absent from appointed place of duty, 3 days), Article 92 (Failure to obey order or regulation, 3 specifications: underage drinking, operating a motor vehicle while impaired by alcohol, and possessing and consuming alcohol in the Marine BEQ), Article 111 (Drunken driving), and Article 112 (Drunk on duty); and one summary court martial (SCM) for violation of the UCMJ: Article 134 (Consuming alcohol while on restriction).  Based on the offenses committed by the Applicant,  command administratively processed  for separation.  When processed for administrative separation, the Applicant waived  rights to consult with qualified counsel, submit a written statement, and request an administrative discharge board.  

The Applicant enlisted in the Marine Corps in December 2004, but required a drug waiver after admitting to using marijuana seven times.  (The NDRB noted that while in treatment at the Wilmington Treatment Center (December 2006), the Applicant admitted to a care provider his daily use of marijuana prior to enlisting.)  At the School of Infantry, the Applicant received his first NJP for underage drinking.  From December 2005 until March of 2006 the Applicant was deployed to Kuwait and Iraq; and he claimed that while in Iraq, three members of his unit were killed in an improvised explosive device (IED) attack and one of them, who was a close friend, died in his arms, another was decapitated, and the last one had his “guts hanging out.”  The Applicant also saw children killed from IEDs and insurgent gun fire.  On 05 October 2006, the Applicant received medical treatment for a possible concussion as a result from playing football. (While the NDRB does not discount the possibility of TBI from a mortar or IED attack, this is the only recorded entry of a head injury found in the Applicant’s medical records.)  After at least four documented alcohol incidents, the Applicant attended a seven-day detoxification program at a naval hospital from 8-15 December 2006, and admitted to drinking two to three 750ml bottles of whiskey daily since May 2006.  His discharge diagnosis was alcohol dependence and PTSD, and included instructions to follow-up with Division Psychiatry upon discharge from the Wilmington Treatment Center.  Immediately following the detoxification program, the Applicant was admitted in a 30-day Level III residential alcohol treatment at the Wilmington Treatment Center.  His hospital discharge diagnosis was alcohol dependence, cannabis dependence, and a dual provisional diagnosis of PTSD, and he was prescribed Revia (used to treat alcoholism) with instructions to follow-up with Division Psychiatry and scheduled for aftercare with the Substance Abuse and Rehabilitation Program (SARP) clinic at the Navy 
Hospital at Camp Lejeune.

On 9 February 2007, an evaluation by the Division Psychiatry, 2d MARDIV, II MEF, noted the Applicant was alcohol dependent and had PTSD.  Per the Division Psychiatrist’s letter of 9 February 2007, the Applicant was placed on limited duty status and scheduled a follow-on appointment for March 6, 2007.  On 14 March 2007, the Applicant failed to keep his appointment scheduled with the Division Psychiatrist.  On 18 April 2007, the Applicant was diagnosed with depression and a consult was scheduled with the Division Psychiatry for 2 May 2007; the doctor recorded in his notes that the Applicant had a history of depression prior to entering the service (Note: the Applicant did not identify pre-service depression or the fact he had started taking Effexor, an antidepressant drug, at age 20 on his enlistment medical evaluation of 18 October 2004). The Board could not determine whether or not the Applicant reported for his 2 May  2007 appointment with Division Psychiatry.  On 15 May 2007, a psychiatrist from the Division Psychiatry noted that the Applicant was assessed to have alcohol dependence, PTSD, and depression not otherwise specified (NOS), and he was prescribed Zoloft and Trazodone and told to stop taking Revia. (Note:  Zoloft is used to treat depression and PTSD, and Trazodone is used to treat depression). In a confinement check-in sheet dated 22 May 2007, and on his confinement physical, the Applicant stated that he had no other health concerns and had consumed alcohol daily – “12 PPD.”  In his separation medical evaluation of 28 August 2007, a care provider noted that the Applicant was diagnosed with depression, PTSD and alcoholism; in block 29 of a health assessment, it was noted under explanation for a response of “YES” (Question 24): “Treated for PTSD, depression, alcoholism at Naval Hospital.”

:  (Nondecisional) The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

:  (Decisional) ()  .   The Applicant contends his discharge was not proper and fair because his misconduct is directly related to his PTSD and TBI, and he was never provided counseling or therapy for PTSD.   The NDRB determined the evidence of record demonstrates the Applicant was properly diagnosed and treated for PTSD, alcohol dependence, and depression, and was under the care of the Division Psychiatrist, 2d Marine Division, II MEF, at Camp Lejeune.  The medical records did not indicate whether or not the Applicant received any counseling or therapy, but since he was under the care of the Division Psychiatrist, the Board presumes the Applicant did receive the proper care for his PTSD and his psychiatrist would have provided counseling or therapy if he determined it was necessary.  The Applicant’s four NJPs, one SCM, and violation of his counseling were all alcohol-related and his misconduct clearly meets the requirements for discharge due to a pattern of misconduct.  While PTSD may be a contributing factor for the Applicant’s alcohol dependence, the record does not reflect the Applicant was not responsible for his actions or should not be accountable for his misconduct due to PTSD or TBI.  Based on: 1) the Applicant’s willful nondisclosure of his actual marijuana use and history of depression and treatment prior to enlisting, 2) his NJP for underage drinking, 3) his drunk driving incidents and continuing alcohol incidents after his second treatment for alcohol dependence, and 4) no documentary evidence of the Applicant’s suffering from nightmares, panic attacks, sleeplessness, loss of weight, or increased depression between February 2006 and November 2006, the NDRB opined the Applicant’s diagnosed PTSD was not a mitigating factor associated with the Applicant’s in-service misconduct and the awarded characterization of service was warranted.  

In the Applicant’s addendum to his application for discharge upgrade, the following verbiage is provided: “It should be noted at this time that [Applicant] has been found eligible for healthcare for the following medical conditions as a veteran of the Gulf War Era: a) a laceration of the right leg; b) post concussion syndrome claimed as traumatic brain injury; and c) post traumatic stress disorder (PTSD).”  For the Applicant’s edification, the Department of the Navy utilizes service members’ service and medical records, along with recommendations by commander to determine discharge characterizations.  Decisions reached by the U.S. Department of Veterans Affairs (VA) to determine if former service members receive certain VA benefits do not effect previous discharge decisions made by the naval service.  For example, the NDRB noted that, within the Applicant’s medical records, was a Camp Lejeune emergency room record (undated) in which the Applicant was admitted for a laceration to his right leg.  Noted on a Chronological Record of Medical Care dated 27 August 2007, also within his record, was that the injury “occurred approx: 4 weeks ago.”  Therefore, this laceration occurred near the end of July 2007, and not while the Applicant was in Iraq between December 2005 and March 2006.  

Issue 3:  (Decisional) ()  .    The Applicant contends there is a service-wide basis for  upgrading his characterization of service. The Applicant cited two previous NDRB decisions, one involved a service member who received a General (Under Honorable Conditions) discharge for a pattern of misconduct and anther who received a General (Under Honorable Conditions) discharge for fraudulent entry.  The Board reviews the propriety and equity of an Applicant’s discharge on a case-by-case basis.  If 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.  Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the U.S. Marine Corps.  A preponderance of the evidence reviewed supports that the Applicant’s misconduct, which forms the primary basis for determining the character of his service, reflected a significant departure from the conduct expected of a service member, that separation from the Marine Corps was appropriate, and that an Under Other Than Honorable Conditions discharge was warranted.  

Issue 4:  (Decisional) ()  .    The Applicant contends there is a similar characterization and narrative reason basis to upgrade his characterization of service. The Applicant cited two previous NDRB cases, one involved a servicemember who received a General (Under Honorable Conditions) discharge for physical condition not a disability and another who received a General (Under Honorable Conditions) discharge for alcohol rehabilitation failure.  As noted in the previous paragraph, the Board reviews the propriety and equity of an Applicant’s discharge on a case-by-case basis.  The Board found no evidence that a medical officer determined the Applicant was suffering from a physical or mental condition apparently beyond the Applicant’s control and indicated the condition was not a disability—ruling out the Applicant’s potential for separation for condition not a disability.  

Although the Applicant successfully completed his 7-day detoxification program and the 30-day Level III treatment, he did fail his aftercare program when he committed several misconduct offenses that were alcohol-related.  However, the Board found no evidence that the Applicant lacked the potential for continued service in the Marine Corps or required long-term rehabilitation—also ruling out separation for alcohol rehabilitation failure.

Issue 5:  (Decisional) ()  .    The Applicant provided a very comprehensive package that included in-service and post-service medical records, character references, educational accomplishments, and previous NDRB decision documents.  While the Board appreciates the Applicant's efforts to continue and overcome his medical issues and his desire to become a history professor, the Board determined the evidence of post-service conduct was not sufficient enough to demonstrate his in-service misconduct was an aberration and not indicative of the his overall character.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and discharge process, the Board found  Therefore, the awarded characterization of service shall   and the narrative reason for separation shall remain .

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of  discharge.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe 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:  After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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.  There are veterans organizations such as the American Legion and the Association of Service Disable Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’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 BCNR can make changes to reenlistment codes.  Additionally, the NDRB 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, 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 BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.  

Post-Service Conduct:  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  Outstanding post-service conduct, 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, is considered during Board reviews.  Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle.   The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate  in-service misconduct was an aberration and not indicative of the member’s overall character.

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 NDRB 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