ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20090305
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)	20010130 - 20010826  	Active:	

Period of Service Under Review:
Date of Enlistment:  20010827	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20070201	Highest Rank:  
Length of Service:    Year(s)    Month(s)  05  Day(s)
Education Level:  	AFQT:  57
MOS:  0311
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle       w/2 bronze stars  w/2 bronze campaign stars  

Periods of CONF: 20050628-20051022 (117 days)

NJP:  

SCM:  
- 20041217:	Article 112a (Drugs abuse – wrongful use of a controlled substance: cocaine)
		Sentence:   RESTR

SPCM:  
- 20050621:	Article 112a (Drug abuse – wrongful use of a controlled substance: 2 specifications for marijuana)
		Sentence:  BCD CONF FOR 9 MONTHS 20050628-20051022 (117 days) FOP
	                           CA Action: The sentence is approved and, except for the BCD, will be executed, but the execution of that part of the sentence extending to all confinement in excess of 150 days is suspended for 12 months.

CC:  

Retention Warning Counseling:  

Administrative Corrections to the Applicant’s DD 214

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

	  “(117) 20050628-20051022”

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 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURT-MARTIAL, 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 IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications.

C.  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.

D.  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 (Drug abuse, wrongful use of a controlled substance). 

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

Applicant’s Issues

1.  The Applicant is seeking service benefits from the VA.
2.  The Applicant states his discharge was unjustifiable as he was self-medicating for PTSD.

Decision

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

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  COURT-MARTIAL.

Discussion

With respect to a discharge adjudged by a court-martial case, 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 Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  In response to the Applicant’s clemency request, relevant and material facts noted in a court-martial proceedings are presumed by the NDRB to be established facts.  The Applicant’s record of service included  Summary Court-Martial (SCM) for  of the Uniform Code of Military Justice (UCMJ): Article 112a (Drug abuse, wrongful use of a controlled substance: Cocaine), and  Special Court-Martial (SPCM) for  of the UCMJ: Article 112a (Drug abuse, wrongful use of a controlled substance: 2 specifications for using Marijuana in California and Iraq).  The Applicant did not require a pre-service drug waiver prior to entering the Marine Corps, but did acknowledge  complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 20 September 2000.  Based on the offense(s) committed, processing for administrative separation was mandatory following the Applicants SCM.   During processing, the NDRB inferred that the Applicant’s command must have requested that the separation authority retain the Applicant—a rare request—which was apparently granted.  The Applicant, who remarked at his SCM (17 December 2004) that he would never use drugs again, would use drugs only days later, while on restriction.  This incident was not known prior to his third deployment to Iraq, and eventually surfaced due to his use of drugs in Iraq for which he was tried and convicted at a SPCM.  The Applicant’s SPCM was conducted in Iraq, following which he was transferred back to Kuwait and then CONUS to serve out his confinement.       

:  (Nondecisional) The Applicant seeks service benefits from the U.S. Department of Veteran Affairs (VA) for in-service related issues.  The Applicant is advised that 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.

Issue 2: (Decisional) () .  The Applicant contends his discharge was unjustifiable as he was self-medicating for Post Traumatic Stress Disorder (PTSD).   The NDRB noted that, based on his in-service and VA medical records, the Applicant does suffer from PTSD.  The Applicant noted in his application that he did not utilize any medications during his first two deployments to Iraq and that he was not treated or seen by any medical providers.  Within the Post-Deployment Health Assessments (PDHA) for his two deployments, the Applicant noted his health stayed the same or got better.  During a health care provider interview conducted in conjunction with PDHA for his second deployment, the Applicant told a Lt O_ (medical provider) that he had experienced nightmares and was “constantly on guard.”  During the interview, the Applicant was asked he if intended to seek counseling or care for his mental health, to which he responded “NO.”   Although the Applicant was showing possible signs of PTSD, it appears that he either believed he didn’t need help or didn’t want help, and Lt O_ didn’t feel compelled by the interview to require the Applicant to seek further counsel for PTSD.  However, Lt O_ did refer the Applicant to an anger management class upon return to CONUS on 14 July 2004.  Following this referral, the Applicant was the subject of a SCM five months later for using cocaine, and retained for further service.  

A record review also revealed that the Applicant again used drugs (marijuana) at least twice, once at Camp Pendleton, California (3 days after his SCM in a restricted status) and while deployed to Iraq.  The Applicant was tried and convicted in Iraq for these offenses.  The NDRB did note contradictions in the Applicant’s personal statement to health providers and his statement in his SPCM proceedings concerning his drug use in Iraq.  While in confinement in Kuwait, the Applicant was formally diagnosed and treatment started for PTSD symptoms.  After returning to CONUS and having completed his SPCM sentence, the Applicant was discharged from the Marine Corps.  The NDRB reviewed the post-service treatment records for the Applicant and noted that the Applicant, through treatment and medication, was improving.  Unfortunately, the NDRB also noted in case notes for visits as late as September 2009 that the Applicant was still using marijuana once every two to three weeks.  This information of continued illegal drug use was most troubling for the NDRB, which logically opined that if the Applicant was still using illegal drugs despite the treatment and medication he was now receiving for PTSD, it was highly unlikely that he was “self-medicating” with the illegal drugs.   The NDRB also opined that it would be inappropriate to consider a discharge upgrade for one who is still committing the same acts that led to his discharge.  Clemency denied.    

Summary:  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, medical and service record entries, discharge process and evidence submitted by the Applicant, the Board found the discharge was proper and equitable.  The Board found clemency was not warranted and the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed.  Therefore, the awarded characterization of service shall  BAD CONDUCT DISCHARGE 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, Service Benefits, 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