Docket No. MD09-01417

ex-PFC, USMC  

CURRENT DISCHARGE AND APPLICANT'S REQUEST 

Application Received: 20 I 00526
Characterization of Service Received: (corrected) UNDER OTHER THAN HONORABLE CONDITIONS Narrative Reason for Discharge: (per DD 214) MISCONDUCT
Authority for Discharge: (per DD 214) MARCORSEPMAN 6210.5 [DRUGS]

Applicant's Request:  Characterization change to: HONORABLE Narrative Reason change to: NONE REQUESTED

SUMMARY OF SERVICE

Prior Service:
Inactive: USMCR (DEP) 20040115-20041214 COG	Active:  NONE

Period of Service Under Review: Date of Current Enlistment: 20041215
Period of Enlistment: 4 Years 0 Months
Date of Discharge: 20081030
Length of Service: 03  Year(s)  10 Month(s) 16 Day(s) Education Level: 12
MOS: 3051

Age at Enlistment: 18

Highest Rank: LANCE CORPORAL AFQT: 31

Proficiency/Conduct Marks(# of occasions): 4.2 (8) /3.8  (8)  Fitness Reports: NOT APPLICABLE

Awards and Decorations (per DD 214):   Rifle SS ICM WITH 2 BRONZE STARS SSDR (2) GWOTSM NDSM Periods ofUA/CONF:  NONE
NJP: 2

.20050610:    Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer­
disrespectful toward SSgt)
Article 92 (Failure to obey order or regulation - violated Base Order I 0 I 0.8W by wearing PT gear in the
exchange)
Awarded: RIR FOP RESTR Suspended: FOP RESTR

- 20070314:   Article 92 (Operated POV while on base driving privileges were suspended) Awarded: RIR FOP RESTR EPD Suspended: FOP

SCM: NONE   SPCM: NONE   CC: NONE Retention Warning Counseling: 4
-20050613:    For disrespect toward a SSgt by saying to him "you tell me why" and pointing his finger in his face,
rolling his eyes, breathing heavy, and being belligerent when asked why he was wearing PT gear in the PX, and violation ofBO  1020. 8W, by wearing PT gear in the exchange. This type of behavior is unacceptable and will not be tolerated.

-20061215:    For failure to obey an order or regulation. On 20061201 you were seen driving your POV on base, knowing that your base privileges were revoked on 20061107.  You were in direct violation ofPMO  and you failed to follow the orders given to you by your SNCOIC. Conduct such as this will not be tolerated. You need to carefully follow the rules and regulation and all orders that are given to you by your superiors.

Key: NFIR - Not found in record SPCM-  Special court-martial CONF - Confinement

VA- Unauthorized absence
FOP - Forfeiture of pay
CC - Civilian conviction

NJP -Nonjudicial punishment
RIR - Reduction  in rank
CCV  - Correctional Custody Unit

SCM- Summary court-martial
EPD - Extra duties
BW - Confinement on bread and water

Docket  No. MD09-01417

-20070314:   For frequent violations of the UCMJ.

-20071024:   For frequent violations of the UCMJ.

ADMINISTRATIVE CORRECTIONS TO THE APPLICANT'S DD 214

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

Block 24, Character of Service, should read: "UNDER  OTHER THAN HONORABLE CONDITIONS" 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:
DD214:                              t:8l            Service/Medical Record:    t:8l                     Other Records:                                D

Related  to Post-Service Period:
Employment:                           D      Finances:                              D          Education/Training:              D Health/Medical Records:        D      Rehabilitation/Treatment:  D          Criminal Records:                           D Personal Documentation:      D      Community Service:           D          References:                                      D Department of VA letter:       t:8l            Other Documentation:         D
Additional Statements:
From Applicant:                      D    From/To Representation:    t:8l                      From/To Congress member:          D

PERTINENT REGULATION/LAW

A. The Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective I September 200 I until Present, Paragraph 6210, MISCONDUCT.

B. Secretary of the Navy Instruction 5420.174D of22 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.

Key: NFIR -Not found in record SPCM- Special court-martiaJ CONF - Confinement

UA - Unauthorized absence
FOP- Forfeiture of pay
CC - Civilian conviction

NJP- Nonjudicial punishment
RIR - Reduction in rank
CCU-  Correctional Custody Unit

SCM- Summary court-martial
EPD - Extra duties
BW - Confinement on bread and water

Docket  No. MD09-01417

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

APPLICANT'S ISSUES

I. 	The Applicant contends that his misconduct drug use was mitigated by Post-Traumatic Stress Disorder, which should be considered in determination  of his overall characterization of service, thus warranting an upgrade.

DECISION

Date:  20110224 	DOCUMENTARY REVIEW 	Location: WASHINGTON  D.C. 	Representation: Disabled American Veterans

By a vote of 5-0 the Characterization shall  remain UNDER OTHER THAN  HONORABLE CONDITIONS. By a vote of 5-0 the Narrative Reason  shall  remain 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 goverrunental affairs unless there is substantial credible evidence to rebut the presumption, to
include evidence submitted by the Applicant.  The Board did complete a thorough review of the circumstances  that led to his discharge and the discharge  process to ensure his discharge met the pertinent standards of equity and propriety.  The
Applicant's record of service included four 6105 counseling warnings and two nonjudicial  punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 91 (Insubordinate  conduct toward warrant officer, noncommissioned officer, or petty officer) and Article 92 (Failure to obey order or regulation, 2 specifications). Although there was no documentation  ofNJP, the records indicate the Applicant violated UCMJ Article ll2a (Drug abuse, type of drug not specified). The Applicant also had a pre-service drug waiver for using marijuana one time prior to entering the Marine Corps and acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 23 December 2003. Based on the Article I 12a violation, processing for administrative separation  is mandatory.  The NDRB did not have the Applicant's complete administrative  separation  package to determine whether or not the Applicant waived his rights to consult with a qualified counsel, submit a written statement, and request an administrative board or a General Court-Martial  Convening Authority review.  However, the Separation Code (HKKI) on the Applicant's DD Form 214 indicates Drug Abuse- Board Waived.  The Applicant's record of service clearly identifies him as a combat veteran, having served two deployments in Iraq in support of Operation IRAQI FREEDOM.

Issue I:  (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED.  The Applicant contends that his misconduct drug use was mitigated by PTSD, which should be considered in determination of his overall characterization of service, thus warranting an upgrade.  The NDRB conducted  a thorough review of the circumstances that led to the Applicant's discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety.  Although the Board did not have the Applicant's complete discharge package, his record indicated he was recommended for administrative separation  based on a Misconduct (Pattern of Misconduct)  regarding his violations of Articles 91 and 92 (two specifications) and four 6105
counseling warnings before that notice of administration separation  was vacated, and he was subsequently  separated for violation of Article  ll2a (Drug abuse).

Despite a service member's prior record of service, certain serious offenses, though isolated, warrant separation  from the Naval service in order to maintain proper order and discipline.  Violation of Article ll2a is one such offense requiring mandatory processing for administrative  separation  on the first offense, regardless of grade or time in service.  This action usually results
in an unfavorable characterization of discharge or, at a maximum, a punitive discharge with the possibility of confinement if adjudicated and awarded as part of a sentence by a Special or General Court-Martial. The command did not opt to pursue a punitive discharge, but instead chose the more lenient administrative discharge process.  On 25 October 2008, the Separation Authority approved the command's recommendation  for separation and directed the Applicant be discharged  Under Other Than Honorable Conditions for Misconduct due to drug abuse pursuant to paragraph 6210.5 of the Marine Corps Separation and Retirement Manual.  The basis for separation  was directed to be Misconduct with the corresponding  separation  code ofHKKI (Drug Abuse- Board Waived).  The Applicant was discharged subsequently from service on 30 October 2008.  The NDRB determined that the separation  was proper and the narrative reason for separation  was accurate.  Accordingly, on the propriety issue, relief denied.

Docket No. MD09-01417

The Applicant contends that PTSD "brought  on and instigated" his misconduct and the resulting character of service of Other Than Honorable Conditions.  As such, the Applicant contends that the determination of characterization of service should have considered PTSD as a mitigating factor to the misconduct, warranting an Honorable characterization of service.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  The NDRB found no medical diagnosis in the record to support the Applicant's claim, nor did the Applicant produce any medical diagnosis by competent medical authority to support his claim.  NDRB's examination of the Applicant's service record determined  that the Applicant's misconduct commenced less than six months into his Naval service, prior to his first combat tour, and continued sporadically while on a combat tour or not.  Additionally, the NDRB requested but did not receive the Applicant's medical record, nor did the Applicant provide any further evidence other than a copy of a VA Administrative Decision, and a statement from Disabled American Veterans representative,  to determine whether or not the Applicant was diagnosed with PTSD while on active duty or
after discharge.  The NDRB did review the Applicant's proficiency and conduct marks and did not note any major changes after his combat tours, as is typical for those suffering from PTSD.  Without further documentary evidence, the NDRB cannot form a basis of relief.  While PTSD may be a contributing factor for the Applicant's substance abuse, drug use is never a rationale or acceptable excuse for inappropriate conduct or poor judgment.  While he may feel that PTSD was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  Relief denied.

The Applicant should be aware the VA has announced special access to VA enrollment available to combat veterans discharged under other than dishonorable conditions (i.e., those personnel with Under Other Than Honorable or Bad Conduct discharges). The VA determines eligibility for enrollment independent of the Applicant's characterization of service as determined by the Marine Corps. The Applicant is advised to contact his local VA for information.  Alternately, he can calll-877-222-8387 or
visit the following website for more information: http://www4.va.gov/healtheligibility/Library/pubs/CombatVet/CombatVet.pdf.

Summary:  After a thorough review of the available evidence, to include the Applicant's summary of service, service record entries and discharge process, the Board found the discharge was proper and equitable.  Therefore, the awarded characterization of service shall remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain MISCONDUCT.

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

Docket No. MD09-01417

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 pennit 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 Disabled American 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 their 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 Hononible 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; maniage 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