ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20100225
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)	20001208 - 20010805  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20010806	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20040108	Highest Rank:  
Length of Service:    Year(s)    Month(s)  03  Day(s)
Education Level:  	AFQT:  82
MOS:  0331
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	  

Periods of UA/CONF:  

NJP:  

- 20031117:	Article  (Failed to obey a lawful order issued by 1stSGT, by wrongfully using methamphetamine) 
	Article 112a (Wrongfully use a controlled substance, methamphetamine) 
	Awarded:      Suspended:  

SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  

- 20031113:	For positive test for illegal use of a controlled substance (Methamphetamine). 

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”
	
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:		Rehabilitation/Treatment:		Criminal Records:	
	Personal Documentation:		Community Service:		References:	
	Department of VA letter:		Other Documentation:	
		Additional Statements:
	From Applicant:		From/To Representation:		From/To Congress member:	

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.

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

Applicant’s Issues

Decisional issues: (1) The Applicant contends that his misconduct of record was an isolated incident in what was otherwise honorable service and as such, warrants an upgrade in the characterization of his service at discharge to Honorable.  (2) The Applicant contends that his misconduct of record is mitigated by his inability to exercise sound judgment and proper decision making due to the effects of Post-Traumatic Stress Disorder (PTSD).    

Decision

Date:  20110802	        	Location: Washington D.C.	 Representation: 

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

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 identified two decisional issues for the NDRB’s consideration.  In addition, the NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process to ensure, to ensure the discharge met the pertinent standards of equity and propriety.  

The Applicant’s record of service included one 6105 retention-counseling warning and one nonjudicial punishment for  of the Uniform Code of Military Justice (UCMJ): Article 112(a) (Wrongful use, possession, etc of a controlled substance, methamphetamine).  The Applicant  a pre-service drug waiver for using marijuana six times prior to entering the Marine Corps; he acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 6 December 2000.  Based on the Article 112a violation, processing for administrative separation was mandatory.  

The Applicant’s service record documents that he is a combat veteran, having served honorably in the Al-Anbar province of Iraq in support of Operation IRAQI FREEDOM from January to July 2003.  The Applicant received the Combat Action Ribbon for his individual actions while participating in direct combat operations as an infantryman in the area of Karbala, Iraq.  In addition, the Applicant received the Navy and Marine Corps Achievement Medal for his personal efforts in protecting the Karbala General Hospital.

The NDRB reviewed the Applicant’s administrative separation package to ensure he was afforded all rights, as required by the Marine Corps Separation and Retirement Manual (MARCORSEPMAN).  On 21 November 2003, the Applicant was notified - in writing - of the Command’s intent to process the Applicant for administrative separation for Misconduct (Drug Abuse) in accordance with paragraph 6210.5 of the MARCORSEPMAN.  The Applicant was further advised that the least favorable characterization of his service at discharge was Under Other Than Honorable Conditions and that characterization was what the Command was recommending he be awarded.  When notified of administrative separation processing using the administrative board notification procedure, the Applicant elected to exercise his right to consult with a qualified legal counsel.  Additionally, the Applicant elected to not submit written matters to the Separation Authority and chose to waive his right to request a hearing before an administrative separation board.  After review by the Staff Judge Advocate, the Separation Authority determined that the evidence of record was sufficient in law and fact to support the proposed discharge action.  He reviewed the chain of command’s recommendations for an Under Other Than Honorable Conditions characterization of service and the Applicant’s written and signed personal statement regarding his misconduct.  On 07 January 2004, the Separation Authority directed the Applicant be discharged with an Under Other Than Honorable Conditions characterization of service by reason of Misconduct (Drug Abuse) pursuant to paragraph 6210.5 of the MARCORSEPMAN.  He further directed that the Applicant be given an RE-4B reentry code (not recommended for reenlistment, in service drug abuse) upon his discharge.

The Applicant did provide additional documentation for the NDRB’s consideration, to include a Department of Veterans Affairs discharge characterization determination, multiple letters of character reference, unofficial college transcripts, and documentation of post-service diagnosis and treatment for PTSD.
 
(Decisional issue) ()  .  (1) The Applicant contends that his misconduct of record was an isolated incident in what was otherwise honorable service.  (2) The Applicant contends that his misconduct of record is mitigated by his inability to exercise sound judgment and proper decision making due to the effects of PTSD.

Propriety - 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.  The Applicant was recommended for administrative separation in accordance with paragraph 6210.5 of the MARCORSEPMAN - Misconduct (drug abuse).  The Applicant did consult qualified legal counsel and was properly notified of the proposed separation processing; he acknowledged the separation process and elected his rights - in writing.  Naval Drug Lab screening results documented the presence of both amphetamine (1376 ng/ml) and methamphetamine (2260 ng/ml) in the Applicant’s system; as such, it established by a preponderance of evidence that the Applicant had violated Article 112 (a) of the UCMJ.  Processing for administrative separation for illegal drug use was mandatory.  Based on the documentation of record, the NDRB determined that the separation was proper and the narrative reason for separation was accurate.  A change in narrative reason for separation would be inappropriate.  No relief based on propriety of the discharge action is warranted.

Equity - Despite a service member’s prior record of service, certain serious offenses, though isolated, warrant separation from the Naval Service in order to maintain good order and discipline.  Violation of Article 112(a) is one such offense, requiring mandatory processing for administrative separation, regardless of age, grade, combat experience, 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 Applicant did not contest the separation action and waived his right to defend himself at an administrative board hearing.  

The Applicant contends that his misconduct of record was resultant from diminished coping skills as he was suffering from undiagnosed PTSD, which he contends was a mitigating factor in his discharge.  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 Applicant’s personal statement to the Separation Authority established that this was not his first use of illegal drugs, that the use was for recreational purposes with his girlfriend, and that he had used the same drugs before his combat deployment while on active duty.  The Applicant was aware of and understood the Marine Corps Policy regarding illegal drug use.  While he may feel that his undiagnosed PTSD was the underlying cause of his misconduct, the record clearly reflects willful misconduct through drug use both prior to his combat service and after for recreational purposes, demonstrating he was unfit for further service.

Characterization of service at discharge is the recognition of a Marine’s performance and conduct during a period of enlistment and is not necessarily dependent upon the narrative reason for separation.  When the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under Honorable conditions.  An Under Other Than Honorable Conditions characterization of service is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval service.  The NDRB determined that the undiagnosed PTSD was not a basis for mitigation of the willful and deliberate violation of Article 112 (a).  As such, the NDRB determined the Applicant’s conduct, which forms the primary basis for determining the character of service, reflected a significant departure from that conduct expected of a service member by one or more acts or omissions; as such, the awarded characterization was appropriate, was equitable, and was consistent with the characterization of discharge given others in similar circumstances.  Accordingly, relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and discharge process, the NDRB 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 his discharge.  The Applicant is directed to the Addendum for additional information.

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 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 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