ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20100512
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)	20000211 - 20000730  	Active:		20000731 - 20051012  

Period of Service Under Review:
Date of Current Enlistment:  20051013	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20090129	Highest Rank:  
Length of Service:    Year(s)    Month(s)  17  Day(s)
Education Level:                          AFQT:  54	MOS:  1371
Pro/Con Marks:  Pro 3.5 (NFIR)/Con 3.0 (NFIR)	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle (4th)  (4th)  (Iraq) (Iraq) KDSM    LoA(2nd) CoC(Individual award)

Periods of UA/CONF:  UA 20081226 - 20081230 (4 days)	IHCA 20090119 - 20090121 (3 days)

NJP:  

- 20070522:	Article  (Under the influence of alcohol in a combat zone, BAC .25), 20070110
	Awarded: (to E-4)    Suspended:    (6 months)

- 20080912:	Article  (Wrongful use, possession, etc., of controlled substance - Cocaine 278 ng/ml), o/o 20080528
	Awarded: (to E-3)    Suspended:  

- 20081020:	Article  (Assaulting or willfully disobeying a superior commissioned officer)
	Article  (Failure to obey an order or regulation)
	Awarded: (to E-2)    Suspended:   (6 months)

- 20081215:	Article  (UA from restriction muster, 0700 and 0900 in Bldg 6003), 20081128
	Article  (Willfully disobeyed an order, consumed alcohol, in civilian attire out in town, on restriction)
	Awarded: (to E-1)    Suspended:  

- 20081231:	Article  (Absent from his appointed place of duty 20081226 - 20081230, 4 days)
	Awarded:    Suspended:  

SCM:  		SPCM:  		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:

	  “UNDER OTHER THAN HONORABLE CONDITIONS”
	
	  “(4) 20081226-20081230”

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

1.	Applicant contends his previous honorable service warrants consideration for an upgrade.
2.	Applicant contends combat stress/trauma mitigates his misconduct.

Decision

Date:  20110609		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 Board’s consideration.  The Board completed a thorough review of the circumstances that led to  discharge and the discharge process to ensure  discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service reflected five nonjudicial punishments (NJPs) for  of the Uniform Code of Military Justice (UCMJ): Article  (Absence without leave, 2 specifications: restriction muster, 0700 and 0900 on 28 Nov 2008; 26 Dec-30 Dec 2008, 4 days), Article  (Willfully disobeying a superior commissioned officer, 2 specifications: consuming alcohol while on Commanding Officer’s restriction, Oct 2008 and Nov 2008), Article  (Failure to obey order or regulation, 2 specifications: consumption of alcohol while in a combat zone, 10 Jan 2007; consumption of alcohol while on restriction, Oct 2008), and Article  (Wrongful use, possession, etc of controlled substance, o/o 28 May 2008, cocaine 278 ng/ml).  The Applicant had pre-service drug waivers for testing positive on a drug and alcohol test and using marijuana twice prior to entering the Marine Corps.  During his initial enlistment accession processing, the Applicant acknowledged  complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 9 Feb 2000.  Based on the Applicant’s Article 112a violation, processing for administrative separation is mandatory per the Marine Corps Separation and Retirement Manual (MARCORSEPMAN).  When notified of administrative separation processing using the  procedure on 3 Jun 2008 (Drug Abuse) and then again on 22 Oct 2008 (Drug Abuse and Pattern of Misconduct), the Applicant exercised  right to consult with a qualified counsel, but waived his rights to submit a written statement and request an administrative separation board.  Evidence within the record indicates the Applicant was arrested for DUI after his administrative separation package had been initiated/routed for endorsement; additional evidence indicated the Applicant was held in the hands of civilian authorities from 19 -21 Jan 2009.  On 23 Jan 2009, the Applicant received a pre-confinement physical exam, but the record is unclear as to the circumstances surrounding the exam and whether or not the Applicant was actually confined.  The record also references a pre-trial agreement between the Applicant and his Commanding Officer, but the Board was unable to determine the conditions or limitations of the agreement.  During Staff Judge Advocate Review of the administrative separation package (27 Jan 2009), the SJA found that the Pattern of Misconduct notification was in error due to the Applicant not receiving a proper retention warning in accordance with paragraph 6105 of the MARCORSEPMAN.  The Applicant was subsequently separated from the Marine Corps on 29 Jan 2009 with an Under Other Than Honorable Conditions discharge due to Misconduct (Drug Abuse).

:  (Decisional) ()  .  The Applicant contends his previous honorable service warrants consideration for an upgrade.  Despite a service member’s prior record of service, certain serious offenses warrant separation from the Naval Service in order to maintain good order and discipline; violation of Article 112a meets this standard.  During his initial enlistment accession processing, the Applicant received pre-enlistment waivers for testing positive on a drug and alcohol test and using marijuana twice before he entered the Marine Corps.  The Applicant also signed the USMC Drug Policy on 9 Feb 2000 affirming he was fully aware there is a zero-tolerance policy for drug abuse, and he acknowledged the consequences.  While he may feel his previous years of service, which included three OIF tours (Jan 03-Jun 03; Aug 04-Mar 05; Jan 06-Feb 07), mitigates his illegal drug use, the record clearly reflects his misconduct was willful and demonstrated he was unfit for further service.  The evidence of record does not demonstrate the Applicant was not responsible for his conduct or he should not be held accountable for his actions.  When a  service has been honest and faithful, it is appropriate to 

characterize that service under Honorable conditions.  An Under Other Than Honorable Conditions discharge is warranted when a Marine commits or omits an act that constitutes a significant departure from the conduct expected from a Marine.  The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of conduct expected of all Marines, especially considering his grade, experience, and length of service, and falls short of what is required for an upgrade in the characterization of service. 

:  (Decisional) ()  .  The Applicant contends combat stress/trauma mitigates his misconduct.  The Board conducted an exhaustive review of the records and found no evidence to support, nor did the Applicant provide any evidence to support, his claim that combat stress was responsible in the misconduct for which he was separated; misconduct that included 5 NJPs for alcohol use in a combat zone, illegal cocaine use, willful disobedience of a superior commissioned officer, failure to obey orders, and unauthorized absences.  The record did include evidence of the Applicant’s longstanding personal history of alcohol abuse and anxiety attacks and nervousness when placed in uncomfortable situations.  The records revealed that the Applicant attended a “residential Marine alcohol awareness course” during his previous enlistment in Sep 2003.  During the current enlistment, he attended residential substance abuse rehabilitation program treatment for 4 weeks, from 9 Apr-4 May 2007, where he was treated for alcohol dependency.  While undergoing treatment, the Applicant received a psychiatric evaluation that diagnosed him with Alcohol Dependence, Panic Disorder with Agoraphobia, and Attention Deficit Hyperactivity Disorder.  The physician specifically noted in the evaluation report that the Applicant denied any symptoms related to PTSD.  This note corroborated a previous psychiatric evaluation during the Applicant’s first enlistment (25 Jul 2005) in which the physician noted the Applicant had no reported PTSD symptoms of nightmares, flashbacks, or being easily startled.

The NDRB recognizes that serving in the U.S. Marine Corps is challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  However, all members of the Naval Services are expected to uphold the high standards of conduct as evidenced in our Core Values of Honor, Courage, and Commitment, regardless of the environment or mission in which assigned.  After careful consideration of all the available evidence and in consideration of the Applicant’s three deployments in support of Operations Iraqi Freedom and Enduring Freedom, the Board determined this issue to be without merit and did not provide a basis for which relief could be granted.  Relief Denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries and the administrative separation 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 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