ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20100507
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)	20040819 - 20050816  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20050817	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20080708	Highest Rank:  
Length of Service:    Years    Months  22  Days
Education Level:  	AFQT:  69
MOS:  0311
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle , , , , , 

Periods of UA/CONF:  

NJP:  

- 20080111:	Article  (Wrongful use of controlled substance, cocaine 24,287 ng/ml)
	Awarded:     Suspended:  

SCM:  	SPCM:  	CC:  	Retention Warning Counseling:  

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 - The Applicant contends that his misconduct was an isolated incident in 34 months of what was otherwise meritorious service, to include combat service; and, as such, warrants consideration for an upgrade in the Applicant’s characterization of service at discharge.  Additionally, the Applicant contends that his misconduct was a result of stress from personal family problems and depression related to Post-Traumatic Stress Disorder (PTSD).

Decision

Date:  20110707	      	         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 NDRB 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 reviewing the Applicant’s issues, the NDRB completed 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’s enlistment record reflects entry into military service with a waiver to enlistment standards for pre-service illegal drug use - marijuana.  He enlisted on an Infantry Option guarantee contract for 4 years of active duty military service.  During the enlistment waiver process, the Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning the Illegal Use of Drugs, in writing, on 18 August 2004.  

The Applicant’s service record documents that he is a combat veteran, having served honorably in Ar-Ramadi, Al-Anbar Province, Iraq in support of Operation IRAQI FREEDOM from September 2006 to May 2007.  The Applicant received the Combat Action Ribbon for his individual actions while participating in direct combat operations as an infantryman during operations to secure Ar-Ramadi with Task Force 1/6 in Al-Anbar, Iraq.  The Applicant’s record of service does not reflect any paragraph 6105 retention-counseling warnings, but does contain one nonjudicial punishment for violation of the Uniform Code of Military Justice (UCMJ): Article 112a (Wrongful use, possession, etc of a controlled substance – cocaine, 24,287 ng/ml).  Based on the Article 112a violation, processing for administrative separation from the service was mandatory.  

The NDRB reviewed the Applicant’s administrative discharge package to ensure he was afforded all rights, as required by the Marine Corps Separation and Retirement Manual (MARCORSEPMAN).  The Applicant was originally notified of separation processing in January 2008.  However, due to his Battalion’s redeployment and administrative oversight, the separation package appears to have languished until 27 April 2008 when the Regimental staff re-notified the Applicant of his rights and re-started the administrative separation processing.  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 advised further 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 waived  right to consult with a qualified legal counsel.  Additionally, the Applicant elected not to 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 regarding characterization of service, to include a personal statement from the Applicant seeking consideration for retention.  On 27 June 2008, the Separation Authority directed the Applicant be discharged with an Under Other Than Honorable Conditions characterization of service by reason of Misconduct (Drug Abuse).

The Applicant provided no additional documentation beyond his personal statement that was not already documented in his service record for the NDRB’s consideration, or to rebut any presumption of regularity by the NDRB.  The Applicant’s personal statement to the NDRB contends that the Applicant is suffering from PTSD related to his combat service; however, the Applicant provided no documentation of either an in-service diagnosis of, or a post-service diagnosis/treatment for, PTSD.

(Decisional Issues)  ()  .  The Applicant contends that his misconduct was an isolated incident in 34 months of what was otherwise meritorious service, to include combat service.  Additionally, the Applicant contends that his misconduct was a result of stress from personal family problems and depression related to PTSD.

Propriety - The Applicant was recommended for administrative separation in accordance with paragraph 6210.5 of the MARCORSEPMAN - Misconduct (Drug Abuse).  The Applicant did not elect to consult with a qualified legal counsel and was notified properly of the proposed recommendation for separation (twice); he acknowledged the separation process and elected his rights - in writing.  Naval Drug Lab screening results documented the presence of cocaine in the Applicant’s system; 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.  Relief denied.

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 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, though he did submit a letter to the commanding officer requesting that he be retained in the service and allowed to finish his obligated service.  

The Applicant contends that his misconduct of record was resultant from diminished coping skills as he was suffering from undiagnosed PTSD, complicated by severe family problems.  The NDRB requested the Applicant’s medical record; after an in-depth review, there were no indicators of PTSD documented in the record.  The Applicant did not provide any documentary evidence from civilian mental health care professionals or from the VA medical system to support a diagnosis of PTSD for consideration in mitigation of the misconduct.  The NDRB reviewed the Applicant’s proficiency and conduct (pro/con) marks and his overall service record.  Of note in the Applicant’s separation process, the entire Battalion chain of command, officer and enlisted alike, recommend that the Applicant be retained in some fashion by the Separation Authority and be allowed to complete the unit’s upcoming deployment and his contractual service obligation.  Though the Regimental Staff resubmitted the Applicant’s separation package without the original Battalion endorsements, they did highlight the fact that the Battalion chain of command had strongly recommended retention.

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.  A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record.  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.  

Given the facts of the record, the information provided by the Applicant, and the Applicant’s combat service, the NDRB determined that the Applicant’s conduct, which forms the primary basis for determining the character of his service, was honest and faithful, but that a significant negative aspect of the member’s conduct did outweigh the overall positive aspects of his record.  As such, given the facts and circumstances unique to this case, the NDRB determined relief is warranted based on equitable grounds.  The NDRB voted unanimously to upgrade the characterization of service at discharge to General (Under Honorable Conditions), but that no change to the narrative reason for separation is warranted.  

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service and medical record entries, and discharge process, the NDRB determined that   Therefore, the awarded characterization of service shall  , however, 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 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 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